Some musings about bail: Part 1, The system


A person apprehended for allegedly committing a crime in the United States is, according to the U.S. Constitution, presumed innocent until found guilty by a jury of the person’s peers. The presumption of innocence raises the question of what to do with the accused until his/her trial.

One option is to incarcerate the accused until a court determines the person’s innocence or guilt. Incarcerating all accused persons prima facie violates the presumption of innocence. Human propensity to err constitutes the theological basis of this important legal safeguard against overzealous or corrupt law enforcement officials.

Incarceration is also expensive, for example, costing over $65,00 per year, per person, in Hawai’i. For individuals who pose an immediate threat to the community or to themselves, incarceration or mandated participation in a secure residential treatment program is appropriate. For all others, keeping the accused incarcerated is tantamount to punishing a person legally presumed innocent.

A second option is to release the accused on his/her own recognizance, relying upon the individual to appear in court on the appointed date. A modern variant of releasing the accused on his/her own recognizance is to require the accused to wear an ankle bracelet that allows the criminal justice system to track the person’s movements and alert the system if the person crosses pre-determined boundaries. Confiscation of the person’s passport is sometimes another aspect of releasing an accused on his/her own recognizance.

A third option is to release the accused into the custody of another person, relying upon that custodian to ensure the accused appears in court on the appointed date. The custodian may also be an institution, e.g., a residential treatment program or hospital for the mentally ill.

A fourth option is bail, consisting of cash or real property, that the accused puts in the custody of the criminal justice system to ensure his/her appearance in court. When the individual appears in court as required, the bail is returned. Failure to appear results in forfeiture of the bail. The eight amendment to the U.S. Constitution prohibits excessive bail for those accused of federal offenses.

The bail bond industry developed as an option to individuals posting bail directly. A bail company recognized by the courts posts a bond in lieu of bail; if the accused fails to appear in court, the bail company forfeits the bond. The bail company charges the accused a non-refundable fee, often a percentage of the bail, to post the bond and thereby secure the accused’s release from custody. Many accused individuals lack the resources to post bail directly. If they do have the financial resources, posting the bail may take longer than working through an established bail bond company.

In order to be viable, let alone profitable, a bail bond company must accurately assess which individuals will and will not appear in court. The bail company will also want to determine if the accused has the resources to pay the bond in case of default. Perhaps most importantly, the bail bond company will seek a person willing to stand surety for the accused. By standing surety, this person agrees to pay the bail company the amount of the bond in case the accused fails to appear in court. By standing surety, the person has a significant vested interest in ensuring that accused appears in court on the specified date and time. Some bond companies will not post bail for individuals directly but work only through someone willing to stand surety, depending upon this ally to avoid losing the bond posted.
Part 2 of this post will enumerate criticisms of the bail bond system and propose fixes.

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