When a person has been arrested and charged with the commission of a crime, there is inevitably an interval of time before trial. Bail relates to the defendant’s right to freedom during this interval. It involves a pledge of money, property, or a “signature bond” as security that one will be available for trial when requested to appear. Failure of the defendant to appear may result in the forfeiture of the bail. The person who puts up the money is also known as the bail.
The right to bail is deeply rooted in English law and practice. That bail must be in a reasonable amount was established by Parliament with the enactment in 1689 of the Bill of Rights, which declared that “excessive bail ought not to be required.” This principle was incorporated into the Eighth Amendment of the U.S. Constitution, which decrees that “excessive bail shall not be required.” Most state constitutions also forbid excessive bail.
The purpose of bail is to free the accused during the period of time before trial, while at the same time requiring sufficient surety to make it reasonably certain that he will present himself for trial or punishment as ordered. A competent court or magistrate accepts the undertaking that the bail will pay to the state a specified sum that will be forfeited if the accused fails to make the required appearance.
There are compelling reasons why persons accused of crime should be allowed to be free on bail, after arrest and before trial. The right to bail implements the basic presumption of innocence that the law assumes for every person charged with crime. An accused is presumed to be innocent until actually convicted, and like all innocent people does not belong in jail.
Furthermore, to allow a person accused of crime to go free on bail permits unhampered preparation of a defense. The defendant retains one’s job and thus is able to provide family support and contribute to the cost of a lawyer. There is also a chance to put personal affairs in order, and an opportunity to cooperate more meaningfully with counsel. Many studies of pretrial detention show that prolonged detention seriously increases the chances of conviction.
For the federal courts, the underlying law requiring bail is found in the Bail Reform Acts of 1966 and 1984, and in rule 46 of the Federal Rules of Criminal Procedure. Each state has a body of statutes and court decisions that also define the right to bail in state courts (see Federalism). The 1966 Bail Reform Act created a presumption favoring pretrial release. However, the 1984 act, reflecting different priorities, emphasized the need to protect community safety and authorized judges to refuse bail to persons who pose a grave danger to others. This is known as preventive detention. The 1984 act was upheld by the Supreme Court in United States v. Salerno (1987). The Court ruled that preventive detention was not a punishment for dangerous individuals but an attempt to address the serious problems of crimes committed by persons who have been released on bail.
The judge or magistrate fixing bail must take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, family and community ties, employment stability, financial resources, character and mental condition, and any previous record of appearance at court proceedings. Most importantly, in assessing the danger of fleeing from the court’s jurisdiction, the judge must make an assessment of the accused’s ties to the community. After conviction, the defendant usually has a right to appeal, but bail after conviction is not a matter of right, since the presumption of innocence can no longer be claimed.
Forfeiture of bail does not give the accused any immunity from being tried for the offense in question. Bail is designed to secure appearance at trial and submission to the judgment of the court. It is not designed as a satisfaction for the offense.
The judge or magistrate dealing with bail necessarily exercises a large discretion. The judge’s decision will not be set aside by a reviewing court unless there is a strong proof of an abuse of that discretion. The judge is ordinarily in the best position to evaluate the facts of the crime.
Until recently bail bonds were furnished by private bail bondsmen who collected a 10 percent fee from the defendant in return for posting bond. They had extraordinary powers to capture those who “jumped bail” and did not appear in court as required. Widely viewed as a source of corruption, the bondsman system has been replaced in some states by a bail system run by the courts themselves. Based on the assumption that the sole purpose of bail is to assure the defendant’s appearance in court, bail reform efforts have stressed the likelihood that most persons will appear as required. Wherever possible a defendant—one with a job and strong ties to the community, and not charged with a serious violent crime—can be released on his or her own recognizance. Alternatively, a signature bond can be posted, which requires no cash down payment but which must be paid if the defendant fails to appear. Beyond that, if bail money is deemed necessary, the defendant can obtain it from the court by posting a small down payment; most of that down payment is returned upon appearance. This makes bail affordable to most people and eliminates the profit motive of the private bondsman. The work of the Vera Institute of Justice in New York City in the 1960s was the catalyst for the bail reform movement. A shift in public attitudes away from defendants’ rights and toward reducing crime has slowed but not halted bail reform.
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