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
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
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.
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.