BAIL

BAIL

The system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial.

In general, an individual accused of a crime
must be held in the custody of the court until his
or her guilt or innocence is determined. How-
ever, the court has the option of releasing the
individual before that determination is made,
and this option is called bail. Bail is set by the
judge during the defendant’s first appearance.
For many misdemeanors, bail need not be set.
For example, the defendant may be released on
the issuance of a citation such as a ticket for a
driving violation or when booked for a minor
misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.

The courts have several methods available for releasing defendants on bail. The judge
determines which of these methods is used. One alternative is for the defendant to post a bail bond or pledge of money. The bond can be
signed by a professional surety holder, the
accused, or the family and friends of the
accused. Signing the bail bond is a promise that
the defendant will appear in the specified crimi-
nal proceeding. The defendant’s failure to
appear will cause the signers of the bond to pay
to the court the amount designated. The
amount of bail is generally an amount deter-
mined in light of the seriousness of the alleged
offense.

A defendant can also be released upon her or his own recognizance, which is the defendant’s written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community.Willful violation of the terms of a personal recognizance
constitutes a crime.

Other conditions may also be set regarding the release of the defendant. The Bail Reform
Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many additional conditions that do
not rely upon finances and that reflected current trends to move away from financial requirements for freedom. These conditions came about, in part, owing to concerns regarding the discriminatory nature of bail toward the poor.
The Bail Reform Act allows for conditional
releases dependent upon such circumstances as
maintaining employment, meeting curfews, and
receiving medical or psychiatric treatment.

Civil Actions
A defendant in a civil action can be arrested
to ensure that he or she will appear in court to
respond to the plaintiff ’s claims. Civil arrest pre-
vents a defendant from leaving the jurisdiction
to evade the litigation, and from attempting to
conceal or dispose of assets in order to keep the
plaintiff from collecting on the judgment if the
plaintiff prevails. Since civil arrest is a drastic
remedy, state laws must be consulted to deter-
mine when it may be used. The purpose of bail
in a civil action is to ensure the presence of the
defendant at trial and to guarantee the payment
of a debt or the fulfillment of some civil duty, as
ordered by the court.

The court sets the amount of bail, which is
generally based on the probable amount of
damage against the defendant. In some
instances, if informed of changed circum-
stances, the court might increase or reduce bail.
Cash, as opposed to a bail bond, may be
deposited with the court only when authorized
by statute. The purpose of the arrest and the
statutory provisions determine whether this
deposit may be used to pay the judgment
awarded to the plaintiff.

Criminal Prosecutions
The objective of bail in criminal actions is to
prevent the imprisonment of the accused prior
to trial while ensuring her or his appearance at
trial. Constitutional and statutory rights to bail
prior to conviction exist for most offenses, but
state constitutional provisions and statutes must
be consulted to determine the offenses to which
bail applies. The Bail Reform Act of 1984 gov-
erns bail in federal offenses. It provides the fed-
eral magistrate with alternatives to the
incarceration of the defendant. If the charge is a
noncapital offense (an offense not punishable by
death), the defendant may be released on her or
his own recognizance. If there is a reasonable
likelihood that the defendant will not return for
trial, the judge may impose bail. The judge may
also release the defendant into the custody of a
designated person or organization for supervi-
sion. Restricting the residence, extent of travel,
and personal associations of the accused are
other options.

Discretion of the Court
A court exercises its discretion with respect
to the allowance of bail. In reaching its decision,
it evaluates the circumstances of the particular
case, including the existence of doubt as to the
accused person’s appearance at trial. Unreason-
able delay or postponement in the proceeding,
which is not attributable to the accused, usually
constitutes a ground for bail—in some jurisdic-
tions, by absolute right; more frequently, at the
discretion of the court.

In jurisdictions in which it is neither pro-
scribed nor regarded as an absolute right, the
grant of bail pending a motion for a new trial, a
review, or an appeal is also discretionary. The grant of bail is then determined in light of the probability of reversal, the nature of the crime,
the likelihood of the defendant’s escape, and the
character of the defendant.
The decision to grant or deny bail is reviewable,
but the scope of the review is limited to
whether the court abused its discretion in its
determination.
The amount of bail set is within the discretion
of the court. Once fixed, it should not be
modified, except for good cause. An increase
cannot be authorized when the arrest warrant
specifies the amount of the bail. An application
for a change in bail is presented to the court by
a motion based on an AFFIDAVIT (a voluntary
written statement of facts) confirmed by the
oath of the person making it. The affidavit must
be taken before a person authorized to administer
such an oath and must contain the facts justifying
the change. The EIGHTH AMENDMENT to
the Constitution and the provisions of most
state constitutions prohibit excessive bail, meaning
bail in an amount greater than that necessary
to ensure the defendant’s appearance at
trial.
The Bail Reform Act of 1984 helped to set
guidelines allowing courts to consider the danger
a defendant might present if released on bail.
This response to the problem of crimes committed
by individuals who had been released on bail
marked a significant departure from earlier
philosophies surrounding bail. Bail laws took on
a new importance; they would ensure the
appearance of the defendant in proceedings, and
they would see to the safety of the community
into which the defendant was released.
Pursuant to the 1984 act, if the court deems
that the accused may, in fact, pose a threat to the
safety of the community, the accused may be
held without bail. In 1987, United States v.
Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed.
2d 697, addressed the constitutionality of holding
an individual without bail while awaiting
criminal trial. The Supreme Court held that DUE
PROCESS was not violated by the detention of
individuals without bail.
Breach and Forfeiture
A breach of the bail bond occurs in both civil
and criminal actions when the defendant
“jumps bail” or “skips bail”—that is, deliberately
fails to return to court on the specified date,
thereby forfeiting the amount of the bond. The
act of jumping bail is either a misdemeanor or a
felony, depending upon statute. The mandatory
appearance required in a bail arrangement consists
not merely of responding to the charges but
also of attendance by the defendant at the trial
and sentencing by the court. Appearance by
counsel ordinarily does not prevent a breach,
although under some statutes, where the offense
is a misdemeanor, such an appearance might be
sufficient.
When a bond is breached, the court enters a
judgment of FORFEITURE of the bail. In some
jurisdictions, the judgment is appealable, but
only if the failure to comply with the conditions
of the bond was excusable and the state suffered
no loss of rights against the defendant.
A final judgment normally cannot be
entered on recognizance or bail bond without
additional proceedings. Such proceedings are
usually of a civil nature and follow the forfeiture
of bail. These proceedings can be commenced by
a writ (a court order) of scire facias (a judicial
writ requiring the person against whom it is
brought to show cause why the party bringing it
should not have advantage of such record) or by
an independent action.
FURTHER READINGS
Bredefeld, Nicole J. 2001. “The Bail Reform Act of 1984 and
Felons who Possess Weapons: Discrepancy Among the
Federal Courts.” Seton Hall Legislative Journal 26 (September):
215–62.
Colbert, Douglas L., Ray Paternoster, and Shawn Bushway.
2002. “Do Attorneys Really Matter? The Empirical and
Legal Case for the Right of Counsel at Bail.” Cardozo
Law Review 23 (May): 1719–93.
Goldfarb, Ronald. 1965. Ransom: A Critique of the American
Bail System. New York: Harper & Row.
Israel, Jerold H., ed. 2001. Criminal Procedure: Constitutional
Limits, in a Nutshell. 6th ed. St. Paul, Minn.: West
Group.
LaFave, Wayne R., Jerold H. Israel, and Nancy J. King, eds.
2000. Criminal Procedure. 3d ed. St. Paul, Minn.: West
Group.
Sharma, R. 2001. Human Rights and Bail. New Delhi, India:
APH Publishing.
Thomas, Wayne H. 1976. Bail Reform in America. Berkeley:
Univ. of California Press.
United States House of Representatives. Committee on the
Judiciary. Subcommittee on the Constitution. 2000.
Bounty Hunter Responsibility Act of 1999: Hearing Before
the Subcommittee on the Constitution of the Committee
on the Judiciary, House of Representatives, One Hundred
Sixth Congress, second session, on H.R. 2964, March 30,
2000. Washington, D.C.: U.S. Government Printing
Office.
CROSS-REFERENCES
Due Process of Law; Eighth Amendment; Recognizance.