In medieval England, the sheriffs originally possessed sovereign authority to release or hold suspected criminals. Some sheriffs would exploit the bail for their own gain. The Statute of Westminster (1275) limited the discretion of sheriffs with respect to the bail. Although sheriffs still had the authority to fix the amount of bail required, the statute stipulates which crimes are bailable and which ones are not.

In the early 17th century, King Charles I ordered noblemen to issue him loans. Those who refused were imprisoned. Five of the prisoners filed a habeas corpus petition arguing that they should not be held indefinitely without trial or bail. In the Petition of Right (1628) the Parliament argued that the King had flouted the Magna Carta by imprisoning people without just cause.

The Habeas Corpus Act (1679) states, “A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate’s discretion, unless it shall appear that the Party is committed for such Matter or offenses for which by law the Prisoner is not bailable.”

The English Bill of Rights (1689) states that “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required.” This was a precursor of the Eighth Amendment to the US Constitution.

Bail Law in the United States

In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of British law. In 1776, after the Declaration of Independence, those which had not already done so enacted their own versions of bail law.

Section 9 of Virginia’s 1776 Constitution states “excessive bail ought not to be required…” In 1785, the following was added, “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 “Excessive bail shall not be exacted for bailable offenses”.

The Eighth Amendment in the US Federal Bill of Rights is derived from the Virginia Constitution, “Excessive bail shall not be required…”, in regard to which Samuel Livermore commented, “The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail…?!” The Supreme Court has never decided whether the constitutional prohibition on excessive bail applies to the States through the Fourteenth Amendment.

The Sixth Amendment, to the Constitution, like the English Habeas Corpus Act of 1678, requires that a suspect must “be informed of the nature and cause of the accusation” and thus enabling a suspect to demand bail if accused of a bailable offense.

The Judiciary Act of 1789

In 1789, the same year that the Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge’s discretion in setting bail. The Act states 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.

The Judiciary Act states, “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.”

The Bail Reform Act of 1966

In 1966, Congress enacted the Bail Reform Act of 1966 which states that a non-capital defendant is to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital crime, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does 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.

The 1966 Act was particularly criticized within the District of Columbia, where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.

The Judicial Council committee 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 noncapital cases.

Current U.S. Bail Law

In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141 - 3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.

18 USC 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.

What is Pretrial Release
by American Bail Coalition [email protected]

1. Q. What is Pretrial Release?

A. It is normally a local governmental entity that releases criminal defendants from jail, at no cost to the defendant.

2. Q. Where does Pretrial Release get its money?

A. Their operations are normally funded by local tax dollars. An average Pretrial Release program can have a budget in excess of $1 million.

3. Q. How did Pretrial Release get its start?

A. It can be traced back to the early 1960’s as a means of providing release to the financially indigent defendant who was not charged with a serious crime.

4. Q. Isn’t that a worthwhile program?

A. Yes, but the unfortunate fact is that these types of programs have been expanded beyond the original scope of just providing for the release of the non-violent indigent.

5. Q. So, what’s wrong?A. This method of release is now being applied to defendants charged with a wide range of criminal offenses, including violent felons, who are financially capable of paying for their release if required to do so.

6. Q. Once it provides a defendant with a free release, then what is its function?

A. The program is supposed to maintain contact with the defendant and make sure that person comes back to court, as directed, until the case is over.

7. Q. Does it do a good job of this?

A. No. It has a very high failure to appear rate.

8. Q. When the defendant subsequently fails to appear in court, is anybody held responsible?

A. Other than the defendant, no. No one is financially responsible for the defendant’s failure to appear.

9. Q. Does anyone within the Pretrial Release program go after them?

A. No. The apprehension of the defendant is usually left to the local law enforcement authorities, the officers responsible for the enforcement of outstanding warrants. This is a minimally staffed section of the law enforcement agency.

10. Q. Doesn’t this form of release appear to actually “reward” the defendant?

A. It can certainly be viewed in that way. Defendants enjoy their release from custody at no financial cost and have no subsequent direct supervision which will require their appearance in court. Nor is there a financial penalty required of someone because of a defendant’s failure to appear in court. Nor does anyone go after them.

11. Q. Doesn’t this method of release seem to support the maxim “…that if you reward poor performance, you just get more poor performance”?

A. Yes it does. It also sends the message to defendants that the crime(s) for which they are accused are not taken seriously by the community.

12.Q. Doesn’t this penalize the taxpayers, who have done nothing wrong?

A. It certainly appears so. The local taxpayers, through the use of their tax dollars, have a criminal defendant released back into the community without any direct supervision guaranteeing appearance in court. Nor is there a party being looked to by the community to bear a financial burden in the form of a penalty for the defendant’s failure to appear. Most importantly, the local community is exposed to the continued threat that the defendant may commit additional crimes while out on release.

13. Q. Can’t this be perceived as a type of taxpayer-funded “criminal welfare” program?

A. Yes it can. The taxpayer pays for the law enforcement personnel who initially arrest the suspects who are then housed in a taxpayer-funded jail. Defendants are then provided with taxpayer-funded public defenders and released under a “free release” program as described above. If the defendants do eventually appear in court (paid for by the taxpayer) and are convicted of the charges, they are incarcerated in a taxpayer-funded prison. At no point do the defendants assume any financial responsibility for their own actions.

14. Q. Are local taxpayers aware such a program exists?

A. No.

15. Q. Is there an alternative way for defendants to be released prior to their trials?

A. Yes. It is called the commercial bail bond profession.

16. Q. How does it work?

A. The defendant, or a family member or friend, engages the services of a licensed bondsman, who possesses a state-issued insurance license to secure his release from custody.

17. Q. Does this cost the taxpayer?

A. No. To the contrary, should the defendant fail to appear, the bondsman agrees to surrender him to court or pay the authorities the face amount of the bail bond posted to secure the defendant’s release.

18. Q. So under this method, are the defendants, their friends or family held financially accountable for their actions after release as well as for their initial release from jail?

A. Yes.

19. Q. Isn’t this a fairer, yet more cost effective, method for the taxpayer?

A. Yes.

20. Q. Why don’t local government leaders insist on just doing it this way?

A. You need to ask them.