Bail
Encyclopedia
Traditionally, bail is some form of property
deposited or pledged to a court
to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial
or forfeit the bail (and possibly be brought up on charges of the crime
of failure to appear
). In some cases bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. If a bondsman
is used and a surety bond has been obtained, the fee for that bond is the fee for the insurance policy purchased and is not refundable.
In some countries granting bail is common. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail.
Legislatures may also set out certain crimes to be not bailable, such as capital crimes
.
to reasonable bail unless there is some compelling reason to deny it. These reasons can be related to the accused's likelihood to skip bail, or to public danger resulting from the accused being at large. In stark contrast to the United States and many other jurisdictions granting a constitutional right to bail, in Canada the accused may even be denied bail because the public confidence in the administration of justice may be disturbed by letting the individual, still legally innocent, go free pending the completion of the trial or passing of sentence (Criminal Code, s. 515 (10)(c)). Sureties
and deposits can be imposed, but are optional.
Emperors, charged with upholding laws or institutions were called Bajulus
(or bearers). Bajulus later evolved in Italy
to mean Protector.
In medieval
England
, the sheriff
s originally possessed the sovereign
authority
to release or hold suspect
ed 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 are not.
In the early 17th century, King Charles I
ordered noblemen
to issue him loan
s. 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) Parliament
argued that the King
had flouted Magna Carta
by imprisoning people without just
cause.
The Habeas Corpus Act 1679
states, "A Magistrate
shall discharge prison
ers 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 offences 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
.
, the police have power to release a person, who has not been charged, on bail. This is deemed to be a release on bail in accordance with sections 3, 3A, 5 and 5A of the Bail Act 1976.
If he is granted bail it will be bail to appear at a Magistrates' Court
at the next available sitting.
time limits have expired and otherwise ordinarily a right to bail unless there is sufficient reason not to grant it,
Any person accused of committing a crime is presumed innocent until proven guilty in a court of law. Therefore a person charged with a crime should not be denied freedom unless there is a good reason.
The main reasons for refusing bail are that the defendant is accused of an imprisonable offence and there are substantial grounds for believing that the defendant would:
The court should take into account the:
The court may also refuse bail:
Where the accused has previous convictions for certain homicide or sexual offences, the burden of proof is on the defendant to rebut a presumption against bail.
The Criminal Justice Act 2003
amended the Bail Act 1976 restricting the right to bail for adults who tested positive for a Class A drug and refused to be assessed or refused to participate in recommended treatment.
Where a defendant is charged with treason
, bail may only be granted by a High Court judge or by the Secretary of State. Section 115 of the Coroners and Justice Act 2009
prohibits magistrates' courts from granting bail in murder cases.
, if the court considers that this is necessary:
. (Sentences are usually much shorter than the maximum, but are often custody.) In addition to imposing punishment for this offence, courts will often revoke bail as they may not trust the defendant again. The amended Consolidated Criminal Practice Direction states (at paragraph 1.13.5) that "the sentence for the breach of bail should usually be custodial and consecutive to any other custodial sentence".
Failing to comply with bail conditions is not an offence, but may lead to the defendant being arrested and brought back to court, where they will be remanded into custody unless the court is satisfied that they will comply with their conditions in future.
, no deposit or pledge of property is asked for; bail is only granted where the court is satisfied the accused will turn up for trial.
was based on English law. Some of the colonies
simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence
, those that 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 that "Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate."
The prohibition against excessive bail
in the Eighth Amendment
is derived from the Virginia Constitution, on 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 1679, 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.
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."
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.
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.
(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.
The Supreme Court upheld the 1984 bail law's pretrial detention provisions in the 1987 case of United States v. Salerno
.
of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.
Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule. These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.
In Texas, bail is automatically granted after conviction if an appeal is lodged, but only if the sentence is fifteen years imprisonment or less. In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.
, ankle monitor
, periodic check-ins, or without monitoring) and detention in jail
, this results in billions of dollars of spending and jail overcrowding, which does not significantly increase the chances of a defendant appearing for trial. It also attributed the constriction of resources for what supporters feel are cost-effective pre-trial release programs to lobbyists for bail bondsmen. The series also reported that bondsmen benefit from laws or practices that do not require them to pay the government a substantial fraction of the actual bail forfeited when defendants fail to show, creating a lack of incentive for bondsmen to compel their customers to appear in court. The series also documented cases where the inability to make bail pressured detainees to plead guilty, and had a negative impact on their economic circumstances, compared with those detainees who could afford bail.
There has been a response to the argument that poor defendants cannot get out of jail on bail because they cannot afford it. In the state of New Jersey
, like many states throughout the country, a defendant can secure a bail bond by agreeing to pay the fee, which is normally ten percent of the bond amount over time. Throughout the industry this is commonly referred to as a payment plan. In theory, this may seem like a good idea; however, if a defendant fails to make a payment, the bail bond company does not have the right to revoke the bail that was set by a judge. This allows a defendant to be released on bail without ever paying the premium owed to the bail bond company.
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
deposited or pledged to a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
or forfeit the bail (and possibly be brought up on charges of the crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
of failure to appear
Failure to appear
Failure to appear is the legal term for the failure of a defendant or respondent to appear at the stated time before a tribunal as directed in a summons. Where the conduct alleged in the summons or complaint is an infraction or summary offence, failure to appear is a crime for which a...
). In some cases bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. If a bondsman
Bail bondsman
A bail bond agent, or bondsman, is any person or corporation that will act as a surety and pledge money or property as bail for the appearance of persons accused in court...
is used and a surety bond has been obtained, the fee for that bond is the fee for the insurance policy purchased and is not refundable.
In some countries granting bail is common. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail.
Legislatures may also set out certain crimes to be not bailable, such as capital crimes
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
.
Canada
Persons charged with a criminal offence in Canada have a constitutional rightRights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
to reasonable bail unless there is some compelling reason to deny it. These reasons can be related to the accused's likelihood to skip bail, or to public danger resulting from the accused being at large. In stark contrast to the United States and many other jurisdictions granting a constitutional right to bail, in Canada the accused may even be denied bail because the public confidence in the administration of justice may be disturbed by letting the individual, still legally innocent, go free pending the completion of the trial or passing of sentence (Criminal Code, s. 515 (10)(c)). Sureties
Surety
A surety or guarantee, in finance, is a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults...
and deposits can be imposed, but are optional.
History
Preceptors of GrecianAncient Greece
Ancient Greece is a civilization belonging to a period of Greek history that lasted from the Archaic period of the 8th to 6th centuries BC to the end of antiquity. Immediately following this period was the beginning of the Early Middle Ages and the Byzantine era. Included in Ancient Greece is the...
Emperors, charged with upholding laws or institutions were called Bajulus
Bajulus
A bajulus was an officer in the court of the Greek emperors. The bajuli were the preceptors of the emperors, whereof there were different degrees: the Grand Bajulus, and the bajuli who were the sub-preceptors. The first officer who bore this title was Antiochus, in the time of the younger Theodosius...
(or bearers). Bajulus later evolved in Italy
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
to mean Protector.
In medieval
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, the sheriff
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....
s originally possessed the sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
authority
Authority
The word Authority is derived mainly from the Latin word auctoritas, meaning invention, advice, opinion, influence, or command. In English, the word 'authority' can be used to mean power given by the state or by academic knowledge of an area .-Authority in Philosophy:In...
to release or hold suspect
Suspect
In the parlance of criminal justice, a suspect is a known person suspected of committing a crime.Police and reporters often incorrectly use the word suspect when referring to the...
ed criminals
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. 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 are not.
In the early 17th century, King Charles I
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
ordered noblemen
Aristocracy
Aristocracy , is a form of government in which a few elite citizens rule. The term derives from the Greek aristokratia, meaning "rule of the best". In origin in Ancient Greece, it was conceived of as rule by the best qualified citizens, and contrasted with monarchy...
to issue him loan
Loan
A loan is a type of debt. Like all debt instruments, a loan entails the redistribution of financial assets over time, between the lender and the borrower....
s. Those who refused were imprisoned
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
. Five of the prisoners filed a habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
petition
Petition
A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer....
arguing that they should not be held indefinitely without trial or bail. In the Petition of Right
Petition of right
In English law, a petition of right was a remedy available to subjects to recover property from the Crown.Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract...
(1628) Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
argued that the King
Monarch
A monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
had flouted Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
by imprisoning people without just
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
cause.
The Habeas Corpus Act 1679
Habeas Corpus Act 1679
The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be...
states, "A Magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
shall discharge prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
ers from their Imprisonment taking their Recognizance, with one or more Surety
Surety
A surety or guarantee, in finance, is a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults...
or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter or offences 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
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
.
Forms
In the UK there are three types of bail that can be given:- Police bail where a suspect is released without being charged but must return to the police station at a given time.
- Police to court where having been charged a suspect is given bail but must attend his first court hearing at the date and Court given
- Court bail where having already been in court a suspect is granted bail pending further investigation or while the case continues
By police before charge
Under the Police and Criminal Evidence Act 1984Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...
, the police have power to release a person, who has not been charged, on bail. This is deemed to be a release on bail in accordance with sections 3, 3A, 5 and 5A of the Bail Act 1976.
By police after charge
After a person has been charged, he must ordinarily be released, on bail or without bail. Unless the accused has a previous conviction (or equivalents in cases of insanity) for certain specified homicide or sexual offences, the accused must be released either on bail or without bail unless:
(a) If the person arrested is not an arrested juvenile
His name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address;
The custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;
In the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence;
In the case of a person who has attained the age of 18, the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable a sample to be taken from him under section 63B below]
- (iv) In the case of a person arrested for an offence that is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property;
The custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence
The custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection
(b) If he is an arrested juvenile,
Any of the requirements of paragraph (a) above is satisfied
The custody officer has reasonable grounds for believing that he ought to be detained in his own interests
If he is granted bail it will be bail to appear at a Magistrates' Court
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
at the next available sitting.
Rights
Under current law, a defendant has an absolute right to bail if the custodyDetention of suspects
The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
time limits have expired and otherwise ordinarily a right to bail unless there is sufficient reason not to grant it,
Any person accused of committing a crime is presumed innocent until proven guilty in a court of law. Therefore a person charged with a crime should not be denied freedom unless there is a good reason.
The main reasons for refusing bail are that the defendant is accused of an imprisonable offence and there are substantial grounds for believing that the defendant would:
- Abscond
- Commit further offences while on bail
- Interfere with witnesses
The court should take into account the:
- Nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it)
- Character, antecedents, associations and community ties of the defendant,
- Defendant's bail record, and
- Strength of the evidence
The court may also refuse bail:
- For the defendant's own protection
- Where the defendant is already serving a custodial sentence for another offence
- Where the court is satisfied that it has not been practicable to obtain sufficient information
- Where the defendant has already absconded in the present proceedings
- Where the defendant has been convicted but the court is awaiting a pre-sentence report, other report or inquiry and it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody
- Where the defendant is charged with a non-imprisonable offence, has already been released on bail for the offence with which he is now accused, and has been arrested for absconding or breaching bail
Where the accused has previous convictions for certain homicide or sexual offences, the burden of proof is on the defendant to rebut a presumption against bail.
The Criminal Justice Act 2003
Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
amended the Bail Act 1976 restricting the right to bail for adults who tested positive for a Class A drug and refused to be assessed or refused to participate in recommended treatment.
Where a defendant is charged with treason
High treason in the United Kingdom
Under the law of the United Kingdom, high treason is the crime of disloyalty to the Crown. Offences constituting high treason include plotting the murder of the sovereign; having sexual intercourse with the sovereign's consort, with his eldest unmarried daughter, or with the wife of the heir to the...
, bail may only be granted by a High Court judge or by the Secretary of State. Section 115 of the Coroners and Justice Act 2009
Coroners and Justice Act 2009
-External links:*, as amended from the National Archives.*, as originally enacted from the National Archives.* to the Coroners and Justice Act 2009....
prohibits magistrates' courts from granting bail in murder cases.
Conditions
Conditions may be applied to the grant of bail, such as living at a particular address or having someone act as suretySurety
A surety or guarantee, in finance, is a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults...
, if the court considers that this is necessary:
- To prevent the defendant absconding
- To prevent the defendant committing further offences while on bail
- To prevent the defendant interfering with witnesses
- For the defendant's own protection (or if he is a child or young person, for his own welfare or in his own interests)
Failure to comply
Failing to attend court on time as required is an offence, for which the maximum sentence in a magistrates' court is three months' imprisonment, or twelve months in the Crown CourtCrown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
. (Sentences are usually much shorter than the maximum, but are often custody.) In addition to imposing punishment for this offence, courts will often revoke bail as they may not trust the defendant again. The amended Consolidated Criminal Practice Direction states (at paragraph 1.13.5) that "the sentence for the breach of bail should usually be custodial and consecutive to any other custodial sentence".
Failing to comply with bail conditions is not an offence, but may lead to the defendant being arrested and brought back to court, where they will be remanded into custody unless the court is satisfied that they will comply with their conditions in future.
Scotland
Under Scots lawScots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
, no deposit or pledge of property is asked for; bail is only granted where the court is satisfied the accused will turn up for trial.
United States
In pre-independence America, bail lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
was based on English law. Some of the colonies
Colony
In politics and history, a colony is a territory under the immediate political control of a state. For colonies in antiquity, city-states would often found their own colonies. Some colonies were historically countries, while others were territories without definite statehood from their inception....
simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
, those that had not already done so enacted their own versions of bail law.
Section 9 of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
's 1776 Constitution
Constitution of Virginia
The Constitution of the Commonwealth of Virginia is the document that defines and limits the powers of the state government and the basic rights of the citizens of the U.S. Commonwealth of Virginia. Like all other state constitutions, it is supreme over Virginia's laws and acts of government,...
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
Pennsylvania Constitution of 1776
The Pennsylvania Constitution of 1776 was the state's first constitution following the Declaration of Independence, and has been described as the most democratic in America. It was drafted by Robert Whitehill, Timothy Matlack, Dr. Thomas Young, George Bryan, James Cannon, and Benjamin Franklin...
states that "Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate."
The prohibition against excessive bail
Excessive bail
The Excessive Bail Clause of the Eighth Amendment to the United States Constitution prohibits excessive bail set in pre-trial detention.The Clause was drafted in response to the perceived excessiveness of bail in England. Excessive bail was also prohibited by the English Bill of Rights...
in the Eighth Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
is derived from the Virginia Constitution, on which Samuel Livermore
Samuel Livermore
Samuel Livermore was a U.S. politician. He was a U.S. Senator from New Hampshire from 1793 to 1801 and served as President pro tempore of the United States Senate in 1796 and again in 1799....
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
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
.
The Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
to the Constitution, like the English Habeas Corpus Act of 1679, 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.
Judiciary Act of 1789
In 1789, the same year that the United States Bill of RightsUnited States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
was introduced, Congress passed the Judiciary Act of 1789
Judiciary Act of 1789
The United States Judiciary Act of 1789 was a landmark statute adopted on September 24, 1789 in the first session of the First United States Congress establishing the U.S. federal judiciary...
. This specified which types of crimes were bailable and set bounds on a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
'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."
Bail Reform Act of 1966
In 1966, CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
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
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
, 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 federal 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 allowspre-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.
(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.
The Supreme Court upheld the 1984 bail law's pretrial detention provisions in the 1987 case of United States v. Salerno
United States v. Salerno
United States v. Salerno, 481 U.S. 739 , was a United States Supreme Court decision. It determined that the "Bail Reform Act of 1984", which permitted the federal courts to detain an arrestee prior to trial if the government could prove that the individual was potentially dangerous to other people...
.
State laws
Bail laws vary somewhat from state to state, as is typical of U.S. jurisprudence. Generally, a person charged with a non-capital crime is presumptively entitled to be granted bail. Recently, some states have enacted statutes modelled on federal law that permit pretrial detentionDetention of suspects
The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.
Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule. These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.
In Texas, bail is automatically granted after conviction if an appeal is lodged, but only if the sentence is fifteen years imprisonment or less. In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.
Forms
In the United States there are several forms of bail used, these vary from jurisdiction, but the common forms of bail include:- Recognizance - when an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited. This is called an unsecured appearance bond or release on one's own recognizance.
- Citation Release also known as Cite Out - This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.
- Surety Bond - by a surety bondSurety bondA surety bond is a promise to pay one party a certain amount if a second party fails to meet some obligation, such as fulfilling the terms of a contract...
, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsmanBail bondsmanA bail bond agent, or bondsman, is any person or corporation that will act as a surety and pledge money or property as bail for the appearance of persons accused in court...
, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially jurisdictions that prohibit bail bondsmen, may demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. This is also known as surety on the bond. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond. In turn, the Bond Agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee's return to court. - Property Bond - the accused or a person acting on his behalf pledges real propertyReal propertyIn English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set. - Immigration Bond - used when the defendant that been arrested is an illegal alien. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or the Bureau of Immigration and Custom Enforcement (ICE). The typical cost associated with this specialty bond is often fifteen to twenty percent of the original bond amount.
- Cash - typically "cash-only," where the only form of bail that the Court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the Court for the following reasons: when the Court believes the defendant is a flight risk, when the Court issues a warrant for unpaid fines, and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone including the defendant can post a cash bond. If the defendant posts his own bond, the Court will deduct fines and costs from the bond before returning any balance.
- Combinations - courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.
- Conditions of release - many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.
- Protective order also called an 'order of protection'- one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.
Controversy
A series of reports by National Public Radio in January 2010 criticized practices in many jurisdictions, which limit funding for pre-trial release programs and result in many poor defendants being held in jail because they cannot afford bail. The series reports that because of the cost differential between pre-trial release (using house arrestHouse arrest
In justice and law, house arrest is a measure by which a person is confined by the authorities to his or her residence. Travel is usually restricted, if allowed at all...
, ankle monitor
Ankle monitor
An ankle monitor is a device that individuals under house arrest are often required to wear. At timed intervals, the ankle monitor sends a radio frequency signal containing location and other information to a receiver. If an offender moves outside of an allowed range, the police will be notified...
, periodic check-ins, or without monitoring) and detention in jail
Jail
A jail is a short-term detention facility in the United States and Canada.Jail may also refer to:In entertainment:*Jail , a 1966 Malayalam movie*Jail , a 2009 Bollywood movie...
, this results in billions of dollars of spending and jail overcrowding, which does not significantly increase the chances of a defendant appearing for trial. It also attributed the constriction of resources for what supporters feel are cost-effective pre-trial release programs to lobbyists for bail bondsmen. The series also reported that bondsmen benefit from laws or practices that do not require them to pay the government a substantial fraction of the actual bail forfeited when defendants fail to show, creating a lack of incentive for bondsmen to compel their customers to appear in court. The series also documented cases where the inability to make bail pressured detainees to plead guilty, and had a negative impact on their economic circumstances, compared with those detainees who could afford bail.
There has been a response to the argument that poor defendants cannot get out of jail on bail because they cannot afford it. In the state of New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
, like many states throughout the country, a defendant can secure a bail bond by agreeing to pay the fee, which is normally ten percent of the bond amount over time. Throughout the industry this is commonly referred to as a payment plan. In theory, this may seem like a good idea; however, if a defendant fails to make a payment, the bail bond company does not have the right to revoke the bail that was set by a judge. This allows a defendant to be released on bail without ever paying the premium owed to the bail bond company.