Wednesday, November 18, 2020 – Bail and Bail Bonds
- Mary Reed
- Nov 21, 2020
- 16 min read
I walk by what appears to be a Hummer with a wraparound advertisement for express bail bonds. It is early morning. Does the person who owns this vehicle think Vitruvian Park in Addison is a good place to attract business? Or is he or she simply a part of the early morning workout group in the parking lot? I suspect the latter. Probably need to be in good shape to be a bail bondsman. I cannot say that I have ever had to make bail, but have always wondered how the system works. Let’s find out.
According to Wikipedia, bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they comply with the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.
In some countries, especially the United States, bail usually implies a bail bond, a deposit of money or some form of property to the court by the suspect in return for the release from pre-trial detention. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime of failure to appear. If the suspect returns to make all his or her required appearances, bail is returned after the trial is concluded.
In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the suspect will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge.
For minor crimes, a defendant may be summoned to court without the need for bail. For serious crimes, or for suspects who are deemed likely to fail to turn up in court, they may be remanded or detained while awaiting trial. A suspect is given bail in cases where remand is not justified, but there is a need to provide an incentive for the suspect to appear in court. Bail amounts may vary depending on the type and severity of crime the suspect is accused of; practices for determining bail amounts vary.
Colonial and early America
In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence, those states that had not already done so enacted their own versions of bail law.
For example, Section 9 of Virginia’s 1776 Constitution originally stated, "excessive bail ought not to be required..." In 1785, Virginia added an additional protection to its constitution, "Those shall be let to bail who are apprehended for any crime not punishable in life or limb...But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail." Section 29 of the Pennsylvania Constitution of 1776 states that "Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate."
The prohibition against excessive bail in the Eighth Amendment is derived from the Virginia Constitution. That prohibition applies in federal criminal prosecutions but, as the Supreme Court has not extended that protection to the States through the Fourteenth Amendment, the Eighth Amendment protection does not apply to defendants charged in state courts.
In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. That law specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act provided that all non-capital crimes are bailable and that in capital cases, the decision to detain a suspect prior to trial was to be left to the judge.
Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.
Bail Reform Act of 1966
In 1966, Congress enacted the Bail Reform Act of 1966, which expanded the bail rights of federal criminal defendants by giving non-capital defendants a statutory right to be released pending trial, on their personal recognizance or on personal bond, unless a judicial officer determined that such incentives would not adequately assure the defendant's appearance at trial. In the event that further assurance was deemed necessary, the judicial officer was required to select an alternative from a list of conditions, such as restrictions on travel. When setting bail, judicial officers were required to consider a defendant's family and community ties, employment history and past record of court appearances.
In non-capital cases, the Act did not permit a judge to consider a suspect's danger to the community — only in capital cases or after conviction is the judge authorized to do so. Individuals charged with a capital crime, or who had been convicted and were awaiting sentencing or appeal, were to be released unless the judicial officer had reason to believe that no conditions would reasonably assure that the person would not flee or pose a danger.
The 1966 Act did not provide significant benefits to those defendants who were required to post bail but lacked the financial means to raise and post bail. Due to the need to produce information about an arrested person in advance of bail hearing, the law also worked best for defendants who had access to lawyers who could help them compile that information in the short amount of time between arrest and hearing.
The 1966 Act was particularly criticized within the District of Columbia, where all crimes formerly fell under federal bail law. In a number of cases, persons accused of violent crimes committed additional crimes when released on their personal recognizance. Even after being arrested on additional charges, some of those individuals were released yet again.
D.C.'s Committee on the Judiciary and Public Safety recommended that, even in non-capital cases, a person's dangerousness should be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in non-capital cases.
Bail bond programs
In the 1960s, some volunteer bail reform projects emerged, advocating new pretrial services programs. For example, the Manhattan Bail Project was formed by the Vera Institute of Justice in 1961 to advance the theory that defendants with prominent ties to the community, such as a stable occupation or long marriage, could be confidently released on the strength of their promise to return. This concept was later termed release on recognizance. The New York city government eventually assumed oversight of the program, although the Vera Institute of Justice designed new ROR systems after defendants failed to appear. As of 2011, the Criminal Justice Agency continues to provide ROR recommendations and oversee the status of released defendants.
Another reform program was the VISTA — Volunteers in Service to America — bail bond program, formed in Baltimore in 1968. The program defined a mathematical system to determine when a person charged with a crime was likely to voluntarily appear in court, such that the person might receive a personal recognizance bond. The system was organized around a point-based marker, where defendants earned points for positive merit and were deducted points for poor behavior.
A research program based in New York City tested the effects of a pretrial release agency and deposit bail. An analysis of the data accumulated over the course of the program indicated that the program was poorly executed by judges, and that bail reform initiatives were perceived by some judges as allowing preventive detention. In 2008, the New York Times wrote "posting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world."
Federal law
Congress repealed the Bail Reform Act of 1966 through its passage of the Bail Reform Act of 1984, codified at United States Code, Title 18, Sections 3141-3150. Unlike its predecessor, the 1984 Act law permits pretrial detention of individuals based upon their danger to the community, not solely upon the risk of flight. United States Code, Title 18, Section 3142(f) provides that only persons who fit into certain categories are subject to detention without bail — persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death; certain drug offenses for which the maximum offense is greater than 10 years; repeat felony offenders; or if the defendant poses a serious risk of flight, obstruction of justice or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.
When persons charged with federal crimes are deemed to pose a risk to their communities, a judge must order pretrial detention.
In a 1987 decision, United States v. Salerno, the Supreme Court upheld the 1984 Act's provision providing for pretrial detention based on community danger. Under the Salerno ruling, pretrial detention without bail on the grounds of an arrestee's dangerousness is constitutional.
Bail may also be denied if the funds used to post the bail likely came from an illegal source. If the source of the funds is illegal, it is deemed less likely that the posting of such funds as bail will ensure the defendant's appearance in court, and hence bail may be denied. The court may order a hearing called a Nebbia hearing to determine the source of the prospective bail funds before making a decision on bail.
Adam Walsh Amendments
On July 27, 1981, six-year-old Adam Walsh was abducted from a mall in Hollywood, Florida, and was later found murdered. In 2006, Congress passed the Adam Walsh Amendments to the 1984 Act in response to the highly publicized case. The amendments provide that any persons accused of a crime involving a minor must be confined, under curfew, and must report regularly to a law enforcement agency.
Critics of the AWA argue that Congress should change the amendments so that a defendant has the opportunity to challenge release conditions that include tracking and monitoring. They argue that the AWA violates defendants’ constitutional rights and undermine the objectives of the 1984 Act by stripping defendants of their rights without significant benefit to the public. Critics propose that defendants charged with offenses that trigger the AWA should be permitted to attempt to prove that its strict pretrial release conditions are unnecessary in their individual cases.
The impact of the law is subject to debate. One study on the Eastern Federal District of California found that average detention length and the overall detention rate has remained relatively unchanged before and after 1984. The group most affected by the law are repeated drug offenders, and the rates of pretrial crime and failure to appear on the trial date have stayed relatively low since the law's passing.
Bail bond
In some countries, such as the United States and the Philippines, it is common for bail to be a cash or other property deposit. Known as a bail bond or cash bail, an amount of money is posted so that the suspect can be released from pretrial detention. If the suspect makes all of their required court appearances, this deposit is refunded.
In 46 US states, as well as the Philippines, a commercial bail bondsman can be paid to deposit bail money on behalf of a detained individual. This practice is illegal in the rest of the world. Illinois, Kentucky, Oregon and Wisconsin have outlawed commercial bail bonds, while New Jersey and Alaska rarely permit money bail.
Types of bail
In the United States, there are several forms of bail used, which vary from jurisdiction. "The dominant forms of release are by surety bond, i.e. release on bail that is lent to the accused by a bond dealer, and non-financial release."
1. Surety bond: By a surety bond, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount, regardless of whether the defendant appears in court. The court in many jurisdictions — especially states that as of 2012 prohibited surety bail bondsmen – Oregon, Nebraska, Wisconsin, Illinois, Kentucky and Maine — may demand a certain amount of the total bail (typically 10%) be given to the court, which is known as surety on the bond and unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond. In turn, the bond agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee's return to court.
2. Recognizance (ROR): When an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. This is called release on one's own recognizance.
3. Unsecured bail. This is a release without a deposit, but it differs from ROR in that the defendant must pay a fee upon breaching the terms of the bail. This is typically called an "unsecured appearance bond."
4. Percentage bail. The defendant deposits only a percentage of the bail's amount — usually 10% — with the court clerk.
5. Citation Release also known as Cite Out. This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.
6. Property bond – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set.
7. Immigration bond – used when the defendant that been arrested is an illegal immigrant. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security or the Bureau of Immigration and Custom Enforcement.
8. Cash – typically "cash-only," where the only form of bail that the court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the court for the following reasons: when the court believes the defendant is a flight risk, when the court issues a warrant for unpaid fines and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited, and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone — including the defendant — can post a cash bond. If the defendant posts his own bond, the court will deduct fines and costs from the bond before returning any balance.
9. Pretrial Services – a defendant is released to the supervision of a pretrial services officer, similar to a probation officer. In most cases defendants have no financial obligation to be supervised. The pretrial services programs can include phone or in-person check-ins, drug testing, court date reminders and any other condition the judges deems necessary.
10. Combinations – courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.
11. Conditions of release – many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include mandatory calls to the police, regular check-ins with a pretrial services program, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling and surrendering firearms.
12. Protective order, also called an “order of protection” or restraining order — one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.
Bail bondsman
A bail bondsman, bail bond agent or bond dealer is any person, agency or corporation that will act as a surety and pledge money or property as bail for the appearance of a defendant in court.
Bail bond agents are almost exclusively found in the United States and its former territory of the Philippines. In most other countries, the practice of bounty-hunting is illegal. The industry is represented by various trade associations, with the Professional Bail Agents of the United States and the American Bail Coalition forming an umbrella group for bail agents and surety companies and the National Association of Fugitive Recovery Agents representing the bounty-hunting industry. Organizations that represent the legal profession — including the American Bar Association and the National District Attorneys Association — oppose the practice of bond dealing, claiming that it discriminates against poor and middle-class defendants while doing nothing for public safety.
History of bail bonds
The first modern bail bonds business in the United States was established by Peter P. McDonough in San Francisco in 1898. However, clay tablets from ca. 2750 BC describe surety bail bond agreements made in the Akkadian city of Eshnunna, located in modern-day Iraq. Indemnitors obtained the release of defendants from jail by paying sums of currency and pledging — with their own property as collateral — that said defendants would show up in court.
Bail bonds modern practice
According to 1996 figures for the U.S., one quarter of all released felony defendants fail to appear at trial, but those released via bail bond appear more frequently than other defendants.
Laws governing the practice of bail bonds vary by state, although the Uniform Criminal Extradition Act — sponsored by the Uniform Law Commission — has been widely adopted. In the state of California, bail bond agreements must be verified and certified by the California Department of Insurance.
Criticisms of bail
Criticism of the practice of giving bail in the United States tends to be directed at the system of cash bail. One of the most common complaints is that a defendant's chance of being released pretrial is determined by how wealthy they are, rather than how much of a risk they are to the public or judicial process. Vice President-Elect Kamala Harris considers reforming the money bail system an important issue. A further argument is that it results in unnecessary pretrial detentions, when many defendants can be trusted to appear in court without incarceration or with less drastic monitoring. The unnecessary incarceration also puts defendants at risk of being wrongly convicted or drawn further into crime. The system has been further accused of being inconsistent, affected by racial bias and having undesirable effects on wider communities.
Wealth bias
A common criticism of the system of cash bail is that it creates a system where wealthier defendants are less likely to be incarcerated pre-trial than poorer defendants, even if they are accused of the same crime and pose the same risk to the community and judicial process.
In the high-profile cases of Bernie Madoff and Marc Dreier, the defendants avoided pretrial detention despite huge flight risks, simply because they had the money to pay the court exorbitant sums. This is in accordance to the current interpretation of the Bail Reform Act of 1984, which allows the wealthy to avoid pretrial detainment by paying for highly restrictive measures that ensure constant supervision. This means that a poor defendant is held in jail while waiting for a trial, while a wealthy defendant would only face house arrest while waiting trial for the same offense. Bail reformists claim that this is a direct violation of the Fourteenth Amendment's Equal Protection Clause, which states that laws must be applied against all citizens equally.
Socioeconomic effects
Whether a result of pretrial detention or not, incarceration has adverse effects resulting in many defendants' inability to maintain employment, access mental and physical health care and engage in constant communication with their family and friends.
Pretrial release conditions placed on youth are largely ineffective, often causing them to commit further crimes by violating the conditions. This means that bail conditions ultimately create a cycle of criminality, trapping juveniles into the prison system rather than helping them escape it. This effect on the youth community is a large reason why activists lobby for bail reform, seeking to prevent the next generation from being trapped in the school-to-prison pipeline. The graph above shows the U.S. school-to-prison link increasingly reflects practices of mass incarceration unique to the U.S.
The VISTA bail bond program in Baltimore in the 1960s, which dealt with 16-20 year old defendants, suggested that while youth are more susceptible to negative consequences of pretrial release conditions, they are also more receptive to positive bail reform programs.
Attorney access
An attorney's ability to defend their client is greatly hampered when their client is placed in pretrial detainment. Jailed defendants are difficult to work with due to restricted access and visiting hours and have minimal time with their attorneys when compared to those who are granted pretrial release. This lack of coordination between the attorney and defendant makes it impossible to craft a strong defense, given that the defendant will often lack witness coaching. Defense attorneys that specialize in criminal trial have gone as far as to say that pretrial detention limits a defendant's ability to exercise his or her constitutional rights.
Juror bias
In 2014, a study done over 975 New Jersey cases tracked a defendant's ability to set bail and the final outcome of their trial and concluded that pretrial detention adversely impacts the length of sentencing in cases of conviction. That is to say, within the same offense type, those unable to post bail received longer sentences than those able to. There have also been other studies that indicate that pretrial detainment sets the odds against the defendant, reducing their chance of acquittal. Attorneys attest that jurors are almost always aware of defendants' bail status, which creates an implicit bias against their client.
Racial bias
Bail policies and bail decisions have been demonstrated to be applied disproportionately harmfully against black and Latino defendants, particularly males. This can be attributed to internalized racial prejudices among judges and bail officers, and also to how current bail policies fail to protect them from such discrimination. When combined with the bail system's favor towards the wealthy, it is found that people of color of low socioeconomic backgrounds suffer most in the justice system, a further violation of the Equal Protection Clause.
Test data from the bail bond market in New Haven, Connecticut, also shows the existence of discrimination based on race when bail is set for minority defendants. Specifically, black and Hispanic defendants generally received disproportionately high bail charges. In order to fight against racial discrimination, some suggest a “color-blind” bail solution that sets bail based on the average offender, regardless of race or gender.
Bail inconsistency
The bail system is further criticized for being arbitrary in how it is applied. Legally, bail determination is based on four factors: seriousness of the crime, ties to the community, the flight risk posed by the defendant and the danger posed by the defendant to his or her community.
In reality, bail determination may also take into account extraneous factors. Some studies have found judicial bias, where a defendant's race, class or gender affect bail. A 1984 study found that when judges were given specific policy guidelines, people with similar convictions were given similar bail amounts. There is concern that great variability across judges yields variability in decisions for identical candidates. The reason for such disparity is that different judges may assign different weights to factors such as flight risk or community ties. This is an often-cited reason as to why bail reform is necessary, as ambiguity in the bail decision-making process may lead to unfair and disparate outcomes.
Even for bail determination based on the danger posed by the defendant to his or her community, critics note that the government's definition of “dangerous” defendants who may not be allowed to go on bail have a tendency not to be dangerous or avoid their hearings at all, suggesting that the definition is too wide and needs to be reformed.
There is reason to believe that a correlation exists between class status and bail decisions. Recent analysis of data taken from Florida bail hearings revealed that indigent defendants with public defenders were more likely to be denied bail when compared to those with retained or hired counsel, but that when they were awarded bail, it was set lower. Several suggested explanations for this result include higher skill level of retained counsel and prison overcrowding. Many prison systems face overcrowding in the modern area of mass incarceration and setting unusually low bails appear to be the judge's way of relieving pressure for local prisons.
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