When he committed suicide, Jeffrey Epstein was being held in jail because he had been denied bail. Headlines have also recently proclaimed that R. Kelly was denied bail, as they did earlier for Paul Manafort. Bail decisions also often make it into at least the local news when a person out of jail on bail is arrested for a heinous crime. But bail has also become newsworthy because California, New Jersey, New York, and other states have reformed their bail laws, and “progressive” prosecuting attorneys have adopted policies of not asking for bail for those arrested for various minor crimes. Furthermore, activists decrying this country’s mass incarceration have turned a spotlight on this aspect of our criminal justice by emphasizing the high numbers of people in jail simply because they cannot post bail. No one has the precise number jailed for the lack of the needed money, but it may be as high 400,000—the equivalent of jailing eighty percent of Wyoming’s population.

So bail is in the news, but our bail system can be easily misunderstood. Part of the reason for that is that we do not have a single unified bail system. Instead, each state and the federal government has its own laws and methods for the setting of bail. The systems, however, have common characteristics.

At least legally, bail is not a punishment. It is set on someone who has been arrested and charged with a crime, not someone convicted of a crime. Only when someone is convicted can punishment follow.  Instead, the original purpose of bail was to guarantee that the accused would be amenable to court processes and make all required court appearances. Bail was to make sure that a person charged with a crime did not flee and appeared for trial.

The purposes of bail were expanded with the federal Bail Reform Act of 1984 which allowed the detention of arrestees because they are a danger to the community, so called preventive detention. However, this was a limited change; it only applied to federal courts, and state criminal cases dwarf the number in federal court. Moreover, most states have not adopted preventive detention. Bail is overwhelmingly set only to prevent the flight of arrestees.

We lack one bail system not only because each jurisdiction has its own bail laws, but also because even localities within a jurisdiction have different cultures for bail-setting. Thus, the amount of bail set and the overall rates of release on bail vary significantly from one city or county to others in the same state. And there is another factor that varies significantly around the country—the quality of the detention facility for those who can’t make bail, which, on the whole, runs the gamut from bad to abysmal.

I can’t, therefore, describe our country’s bail system. I can only give impressions of one system when I practiced law, New York City. That at least might yield a better general understanding of bail in “ordinary” criminal cases.

The sole purpose for bail in New York is to have arrestees show up for required court appearances. Frequently, the bail-setting judge concluded that an accused would return to court without any conditions imposed. In that case, the arrestee was just released, or as said in New York and many other places, “released on recognizance” or ROR. Other times, however, the court concluded that bail was needed.

The basic form of bail was a monetary requirement. Let’s say that a $1,000 bail was set. That meant that if $1,000 in cash was posted with the court, the defendant would be released from jail. The defendant would have the obligation to make all scheduled appearances. If the defendant made the required court dates, at the end of the case no matter what the result—acquittal, dismissal, conviction, prison or no prison—the defendant or whoever posted the money would get $1,000 back minus a service fee. If, however, the accused did not make the required appearances, the state would keep the $1,000, and the defendant would have committed the crime of bail jumping, which carried additional penalties in addition to those for the originally charged crime.

Although judges sometimes required that only cash could be posted, most often the monetary condition was “cash or bond.” In my example, that meant that $1,000 cash or a bond could be deposited with the court clerk.  Someone on behalf of the defendant would purchase a bond from a bail bondsman whose offices dotted the streets around the courts. The law regulated the premium the bondsman could charge, but the bondsmen could decide what collateral they would need to issue the bond. That might be anything of value—jewelry, car titles, bankbooks, property deeds. If the defendant made the court appearances, the collateral went back to whoever gave it to the bondsman, but the premium was an irrevocable fee that the bondsman kept for his service in writing the bond. If the defendant jumped bail, the bond company kept the collateral and the fee, but was supposed to pay the court $1,000. And the bond company had rights to bring the defendant back to court, and, thus, all those movies and TV shows about bounty hunters employed by the bond companies.

In New York, I saw few examples of bond companies bringing bail jumpers back to court. This would indicate that the companies lost money in these situations unless the collateral was worth more than the bond, but that is true only if the bond company paid the $1,000. I never saw a report on how often that happened. Often the companies would in effect plea bargain and get the $1,000 figure lowered. It saved the state the expense of litigating to collect the fee, but it also meant that the bond company was making money and doing little to insure a defendant’s presence in court.

Through history there have been many examples of corruption as a result of the bail bond business. Not much public attention has been paid to the collection of forfeited bonds. The bribery incentive to have state representatives accept less than the forfeited amount can become large.

The bond system also has another problem. It in effect outsources the decision as to who will be released to the bondsman. A person gets released if the bond company decides to write the bond, and that decision solely rests with the company. If the bondsman finds the collateral sufficient, the person gets released; otherwise not. In this way, it is really the bondsman who determines who gets out of detention, not the court. For these and other reasons, many states have outlawed the use of commercial bail bonds.

Whatever the bail system, the setting of bail is a crucial decision for a defendant.

(continued September 13)

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