Bail is defined
as “money you leave with the court as a guarantee that you will go to
all future court hearings.” If all hearings are attended, the cash is
later returned to the payee. Even when there is a risk of flight,
governments find it expensive and unjust to keep those charged with
crimes in jail prior to their trial; putting money on the line is a
simple way to compel people to show up.
Once a case is
completed, the bail money is returned regardless of whether the
defendant is found guilty. If the defendant misses the hearing, or is arrested again before the hearing, the money is forfeited to the state. States often grant a grace period in which all or part of the money may be returned if the defendant eventually appears in court.
The use of bail in order to grant pretrial release is a common practice throughout the world, Though the concept of bail dates back to Ancient Rome, the United States adopted it from the British criminal justice system. In medieval England, judges travelled around the country
to conduct trials, which was often very time-consuming. Not wanting to
hold accused people while they waited for the judge, local sheriffs set
bail. Initially, another individual could promise to make sure the
accused appeared at trial -- but over time, this human pledge was
replaced by a monetary amount.
Typically, after an
arrest is made, bail is offered to the accused in one of two ways:
First, immediately after booking, it may be offered based on a pre-established list of bail amounts for common crimes. It also may be offered at an arraignment or bail hearing where a judge uses his or her discretion to set the amount (this usually happens within 48 hours of booking). Only 4% of all defendants are denied bail.
In
2009,the VERA Institute for Justice, an organization which seeks to
“make the justice system fairer,” collected bail data for the 75 largest U.S. counties. Their study found that 40% of felony defendants were released on their own recognizance and 60% were offered bail. The average bail for felonies was $55,400, with murder posting, far and away, the highest average:
In order to have his business instated, a bail bondsman must pass the state licensing requirements and an exam.
He then must have an application approved by the state licensing board.
A bail bonds business is only able to operate if a larger insurance
company will guarantee its bonds.
These larger insurers, called surety companies, underwrite approximately $14 billion dollars of bail bonds per year, and generally take a 10% fee on what the bail bonds agent earns.
According to a report from The Investigative Fund, surety companies are the big winners in the bail bonds game because they rarely have to pay for a bail loss. The report quotes an officer from the surety company AIA
claiming that his company has never paid a bail loss. The bail bonds
agent is responsible for paying the bail amount when the defendant
doesn’t appear in court. The surety company is only liable if the bail
bond agent is unable to pay, and surety companies mitigate this risk by
requiring the bail bonds agents to keep sufficient funds to cover their
losses.
Criticisms of Bail and Bail Bonding
The primary criticism of the bail system is its regressive nature.
Wealthy individuals may be able to put up the entirety of the bail with
little consequence; those without wealth are more likely to be stuck in
jail. For those who cannot afford the entire bail amount, but have
enough money to pay the fee of a bail bonds agent, this means giving up
the money for the nonrefundable fee.
It’s also expensive, both directly and indirectly, to keep people in jail.
To maintain a crowded jail, the state, local, and federal governments
pay a premium for staff, food and shelter. A sheriff's department in
Lake County, Oregon estimates that one day in jail costs $130. The overt cost is that keeping people in jail often pushes them further into poverty: inmates often lose their jobs and savings while incarcerated, and are unable to support their families.
Some researchers argue that being held in jail leads to worse legal outcomes
than being released. A study on defendants in Kentucky claims that
individuals with similar backgrounds who were not released before trial
are over three times more likely to be sentenced to prison than those released.
Compared to most other countries, the United States has unusually harsh bail policies. The United States holds nearly 500,000 people
in jail pre-trial. This is a rate of 153 pretrial inmates for every
100,000 people in the population, which is substantially higher than any
other country with a population above 10,000,000 people. In comparison,
Canada and France both hold less than 50 individuals for every 100,000
people.
Other nations typically set bail amounts that are more accessible for defendants. A report on bail in South Africa
demonstrates that, unlike in the United States, the vast majority of
defendants offered bail in district courts are able to pay the bail
amount. In Canada, bail must be set so it is within the reach
of the individual or their family. In the United Kingdom, defendants
are generally either released on their own recognizance or pretrial
release is completely denied; financial bail is rarely used.
In fact, for-profit bail bonding is illegal in most of the world. The American Bar Association and the American Civil Liberties Union
have attacked the bail bond industry for not serving the public
interest. The bail bonds industry’s incentive is to fight against reform
that leads to a reduced demand for bail: recent bipartisan efforts in New Jersey to decrease the number of individuals who pay bail was opposed by representatives of the bail bond industry.
In Defense of Bail Bonding
The bail system does not seem to be going anywhere in the 46 states in which it is still legal. From 1990 to 2009, the percentage of felony defendants released on bail has increased from 40% to 61%, while the number of those released on their own recognizance has decreased.
Reformers have been advocating for the increased use of risk assessment tools
to make sure individuals with low probabilities of missing their trial
don’t get a high bail or any bail at all. These tools use contextual data
such as prior convictions, employment, and drug use history to
determine a person's likely behavior. Yet implementing reform is
time-consuming and expensive. The state of Maryland has stated its intention to improve its systems,
but has made little progress toward that goal. The sector that would
most benefit from reforms, the poor, lacks political clout.
Some argue that lobbying from the bail bond industry has also contributed to the 20-year rise of bail. In a report attacking for-profit bail bonding,
the Justice Policy Institute claims that “the industry has been
successful in using its wealth and influence to promote industry
friendly legislation and thwart reform efforts.” The report details
various examples of how campaign contributions have been used to impact
legislation, including over $100,000 in donations that went to two state
senators in Texas who introduced bills that “set restrictions on
alternatives to for-profit bail bonding...” The American Bail Coalition asserts that this report is “propaganda” and “filled with disinformation.”
The bail bond industry is now working to expand bail bonding
as a method of solving the problem of overcrowded prisons. The proposal
is that non-violent offenders could put up an amount of money to get
out of prison that they would get it back if they acted in accord with
what the state mandates. If they are unable to afford the amount, they
can pay a bail bondsman a fee to stake the money, and then that bail
bondsman essentially becomes their probation officer. Laws have already
been passed in Mississippi and Michigan allowing for such bonds and some
researchers believe believe their nationwide adoption is inevitable.
***
There
are many good reasons to argue that bail in America should be radically
reformed and possibly eliminated. In many ways, it’s a regressive tax
against the poor. Likewise, the “bail bondsmen” industry profiteers on
those who lack the ability to post their own bail.
And
yet, the use of bail is on the rise and the bail bondsman lobby is
working to extract more fees by fixing itself in the legal process.
Despite the amalgam of reasons to reduce the prevalence of bail in
America, it seems to only be getting further entrenched in our culture.
