Bail is providing security, usually in the form of money, to guarantee a defendant’s return to court for subsequent court dates. When an offender is arrested, that individual must appear before a lower court judge (e.g., a municipal court judge) for an initial appearance or for the first court appearance after arrest. During this court appearance, the judge determines whether or not the defendant is required to make bail to be released pending the defendant’s next court date. If a defendant can pay the bail amount, the defendant is released into the community and ordered to return for future court dates. If the defendant cannot pay the bail amount or bail is denied, the defendant is placed in jail for the duration of the case. There is no constitutional right to bail; in fact, the Eighth Amendment to the U.S. Constitution only prohibits the use of excessive bail.
A judge’s bail decision rests on four primary factors. Perhaps most important is the seriousness of the offense. The more serious the offense is with which the defendant is charged, the higher the bail amount will be. In most cases, bail is denied for defendants who are charged with first degree murder. Second, flight risk is an important consideration in bail decisions. If the defendant is not a resident of the area in which the offense was committed or if the defendant has been arrested in the past and has not shown up for court dates, the judge may set a high bail amount or deny bail altogether, regardless of the seriousness of the offense. Third, a defendant’s prior criminal record plays a role in bail decisions. Defendants with more extensive prior records will typically have higher bail amounts. Finally, public safety is a concern if the defendant appears to be a risk to others if released. If the defendant has made specific threats or has demonstrated risky behavior in the past, bail could be denied.
Defendants have several ways to secure their release while awaiting trial. The first method is a cash bond, in which the defendant pays the entire bail amount up front. If the defendant appears for all court appearances, the money is returned to the defendant. If court appearances are missed, the defendant forfeits the money. Cash bonds are uncommon, as most defendants cannot afford to pay the full bail amount. A second method is a property bond, in which assets are used as collateral. Those who own homes may cash out equity to pay the bail amount. As with a cash bond, a property bond is uncommon, as most defendants do not own any, or enough, assets to use as collateral. A third method uses a bail bondsman, who pays the bail amount to the court in exchange for a fee that the defendant must pay to the bondsman, usually 10 percent of the bail amount. This fee is nonrefundable. The bondsman basically promises the court that the defendant will make future court appearances. A final method does not involve a specific bail amount. A defendant can be released on his or her own recognizance, in which no bail amount is set, but the defendant is released with a promise to return to court for future court dates. Defendants who are released in this manner are usually charged with minor offenses, have strong ties to the community, or both.
Judges have considerable discretion in bail decisions, with the ability to set any bail amount as long as it is not excessive. Critics charge that this discretion allows the decision of one person to have an impact on numerous aspects of a case. For instance, a judge has limited information at the initial appearance and must make a prediction about the defendant’s future actions. A judge may underpredict and release a defendant who should not be released. On the other hand, a judge may overpredict and incarcerate a defendant who should be released. This has implications not only for the defendant but also for the judge, the criminal justice system, and the public.
Other criticisms of bail decisions include the issues of preventive detention, jail overcrowding, and social class. Regarding preventive detention, a judge may deny bail to a defendant who he fears would be a risk to public safety if released and place the defendant in jail for the duration of the case. Some critics feel that preventive detention is a form of punishment without trial, in that a judge makes a decision to incarcerate a person for something that might occur, not for something that already has occurred. Sometimes judges face constraints in bail decisions based on the conditions of the local jail. If the jail is overcrowded, the judge may have to lower bail amounts or release defendants on their own recognizance to avoid further overcrowding. Finally, critics complain that, because it is based on a monetary system, those who can afford their bail amounts are able to enjoy release pending their case dispositions, whereas those who cannot afford bail are forced to stay in jail. Those in jail may not be able to assist with their defense and must endure the conditions of the jail even though they have yet to be convicted of a crime. Consequently, critics feel that the criminal justice system, through the use of a bail system, draws distinctions between the rich and poor and makes it more difficult for the poor to defend themselves.
- Dhami, M. 2005. “From Discretion to Disagreement: Explaining Disparities in Judges’ Pretrial Decisions.” Behavioral Sciences and the Law 23:367-86.
- Walker, Samuel. 1993. Taming the System. New York: Oxford University Press.
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