System of Bail
A system of bail allows defendants to pay a refundable fee (regardless of their innocence or guilt) and await their trials at home instead of in jail. It’s a crucial component of our constitutional right to “presume innocence until proven guilty,” but critics argue that it has become the primary driver behind America’s massive prison population. Those who can afford to pay their bail can do so and get back their money, but those who cannot must remain in jail until their trial—an arrangement that essentially makes the court’s promise of “innocent until proven guilty” unenforceable for millions of people.
There are several different types of bail, but the most common is a cash bond, where a person posts a full amount to secure their pretrial release. If they do not appear in court, that money is forfeited to the court—minus fees and administrative costs.
If a person has the means, they can also secure their pretrial release by posting a surety bond through a bail bondsman (like those at Around the Clock bail Bonds). A bail bondsman will charge a non-refundable fee—typically a percentage of the total bail amount—and act as the defendant’s “surety,” guaranteeing that they will appear in court.
Finally, a citation release bond is often used for petty crimes and first-time offenders who are considered low risk. Defendants are released on their own recognizance by signing papers and promising to show up for all of their court dates. If they fail to do so, the police can re-arrest them and the judge will issue additional penalties.
Which System of Bail is Most Common?
Defendants may also be denied bail altogether, typically if they are deemed a flight risk or a danger to the community. This is done by a judge at an initial hearing known as an arraignment, where they will be presented with the charges against them and have the opportunity to plead innocent or guilty.
While the concept of bail is incredibly simple, there are a lot of things that can go wrong. For example, it’s not uncommon for a person to fail to show up for their court date because they don’t feel the need to attend and aren’t worried about being found guilty. This can cause the judge to dismiss the case or find them guilty and order them to serve time in jail.
The other reason that bail is so problematic is that it ties a person’s freedom to their ability to pay, and that’s something that can be incredibly difficult for many people—especially those living below the poverty line. Getting rid of money bail and releasing more people pretrial would be a high-impact policy that could dramatically improve millions of lives.
To understand how our current system of bail works, it’s important to understand the history of bail and its various forms. The idea of a financial pledge as a form of pretrial release has been around for centuries, starting with Roman historian Livy writing about it in 461 BC.