History of Bail Research Paper

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Although not traditionally viewed as a function of corrections, bail is an integral mechanism within the system that can allow a defendant to avoid the confines of jail in the early stages of the criminal justice process (i.e., before trial). However, the bail system – particularly in the United States – is frequently viewed as punitive for those who are denied bail as well as for those who cannot secure bail through financial means. In particular, individuals who are denied bail are immediately thrust into the correctional system despite an entitlement to a presumption of innocence. Meanwhile, indigent defendants are penalized for their inability to pay the requisite bail amount. In both scenarios, the punishment (of pretrial detention) occurs before guilt has even been determined.

Bail is commonly defined as the temporary release of an arrestee secured by a bond or promise to appear at future court hearings. Bail, as it is utilized today in the United States and other countries, is rooted in the long-standing practice of using personal sureties as an alternative to pretrial detention.

The term is a derivative of the French word baillier – a denotation of the verb “to deliver.” In historical practice, it refers to the pretrial custody transference of an arrestee, from the court, to others who then become responsible for that individual’s fulfillment of his responsibilities to the court (“Indemnification Contracts” 1949). These individuals are typically referred to as sureties because they function as guarantors of the arrestee’s appearance. In some cases, financial stipulations are attached that must be satisfied by the arrestee, a personal surety, or third party. These monetary provisions may be required up front before bail is granted or may be later required from the arrestee or surety in the event that the individual fails to appear in court. Despite the many nuances of bail systems from one country to another, the practice has not changed significantly since its reported inception in the seventh century as a mechanism of pretrial release. A review of the extensive history of bail, for example, reveals that the theoretical basis underlying bail has essentially remained the same even into the twenty-first century. In other words, bail continues to be used as a deterrent to pretrial flight. Sureties, in particular, are believed to be motivating elements that ensure a person’s appearance in court. What has changed, however, are the conditions in which bail is granted, the types of bail and the means to obtain it, and the purposes to which bail is intended to serve.

In the United States, specifically, the bail system has evolved into one that must reconcile conflicting objectives. In particular, the system must protect the presumption of innocence while also ensuring that individuals who are released return to court, abstain from crime, and maintain the sanctity of the case (Devine 1991; Goldkamp and Gottfredson 1979). Bail in the United States has also developed into an institution that emphasizes financially based means to obtain pretrial release. These are commonly referred to as secured bonds. In cases such as these, the judge or magistrate sets a bail amount to be paid by the arrestee. Here, the assumption is that the individual will opt to return to court rather than to forfeit the money or collateral posted to obtain release before his trial (Ryan 1967). Secured bonds, in fact, are one of the most widely used mechanisms of pretrial release in the United States. A report provided by the Bureau of Justice Statistics (BJS) indicates that of those released between 1997 and 2004, 48 % of felony defendants in state courts were released through secured bail, including surety, deposit, and collateral bonds. The remaining 52 % were released without the requirement of financial conditions (e.g., release on own recognizance, conditional release, unsecured bond) (Cohen and Reaves 2007). While the extensive use of secured bonds in the United States is contrary to how bail systems operate in other countries, such as England (Bottomley 1968), Norway, Denmark, and Germany (Foote 1965), the exchange of money or property for pretrial release is not unique to the United States or to modern-day systems of bail. Court reports from medieval Elton, Huntingdonshire (England) suggest that many arrestees provided payments to their sureties, or pledges, in return for their services (Pimsler 1977). Moreover, countries like England and Canada may impose financial conditions of bail in certain cases. The United States, however, is particularly exceptional in terms of its use of commercial bail bonds (Devine 1991), in which bail is secured through an arrangement between a professional bail bond agent and the arrestee for a fee – a development that reportedly occurred in the nineteenth century and has since become a standard of the American bail system.

This increasing reliance on secured bonds in the United States has raised a number of concerns, of which a majority has been voiced in the last century by individuals seeking bail reform. Critics suggest that the American bail system has strayed from the intended purpose delineated by the country’s founders and has deviated from the criminal justice system’s traditions of the presumption of innocence and equal protection under the law. Yet, despite its opponents, bail in this country continues to drift from its long-standing principles, whereas bail systems in other countries remain focused on nonfinancial factors and the use of personal sureties.

Early Origins Of Bail

Bail is considered one of “the most ancient of Anglo-American criminal justice traditions” (Advisory Commission on Intergovernmental Relations [ACIR] 1983, p. 54). Its roots in Anglo-Saxon history serve as a common denominator that brings together the laws and systems of several countries, including England, the United States, and Canada (Metzmeier 1996). Although the precise origins of bail are unknown, many scholars concede that it originated at some point in medieval England. Some have traced it as far back as to the time of Charlemagne in the eighth century and the practice of hostage-ship. Hostage-ship was used as a tactic of war in which a person was held captive until the “principal” appeared. If he did not show up, the hostage suffered the fate intended for the principal (“Indemnification Contracts” 1949). DeHaas (1940), however, suggested that bail stems from Anglo-Saxon laws during the reigns of King Hlothaere and Eadric in the late seventh century. During this time, the accused had to pay a “bohr” to the victim’s family; the money was returned, however, if he was found innocent of the crime. The use of this early form of pretrial release was not the consequence of forward-thinking sovereigns, but rather it stemmed from the realization that imprisonment was an expensive and problematic way to deal with accused criminals (Duker 1977). Others believed that the modern system of bail began in the ninth or tenth century due to the problems experienced in England’s early criminal court system. At that time, the sheriff assumed primary responsibility for the detention of the suspect after the individual’s arrest. It is likely that in some cases, the suspect had to stay in jail for considerable periods of time – even years – because of geographical issues and the judicial district assignments of the traveling judges (“Bail: An Ancient Practice” 1961). As such, the sheriff would allow the accused to pay a cash bail or utilize personal sureties in return for the suspect’s promise to appear for trial, and, in some instances, he would release the accused on his own recognizance (Pollack and Maitland 1898).

The use of sureties, as noted previously, was reported to have existed some time before the Norman Conquest of 1066 in which individuals agreeing to be sureties were subjected to a formal contract of payment, in which the price was set at the value of a free man’s life (Hazeltine 1910). Sureties were also used in the medieval practice of pledging. In this case, pledges were responsible for the assurance of other behaviors aside from appearance at trial, such as payment of court fines and repayment of a debt. Even still, it appears that the typical function of pledges was the equivalent of the modern-day bail bondsmen; in return for their services, it is likely that the pledgees paid their sureties (Pimsler 1977).

Generally, most writings on the history of bail attribute its modern-day traditions to the time of William I after the Norman Conquest. Prior to the thirteenth century, sureties were bound “body for body” by the court (“Indemnification Contracts” 1949). This meant that if the defendant did not appear at trial, the surety was then subjected to the punishment that would have been inflicted upon the suspect (e.g., enslavement or execution). In later years, however, this requisite was relaxed, such that the surety was responsible for a financial penalty if the accused did not appear in court, thus combining the older tradition of the responsibility of the surety with a different method to impose it (Pollack and Maitland 1898). Bail, therefore, developed into a formal bond by which the accused became the custody of the surety, and the surety promised to pay the penalty if the accused fled.

Statute Of Westminster, 1275

Perhaps the most notable turning point in the evolution of modern-day bail was the Statute of Westminster in 1275. Prior to the thirteenth century, sheriffs had sovereign powers in the release or detention of accused individuals. Any dealings between the sheriff and the accused were not circumscribed by law. Consequently, they could use whatever factors they wanted in making this determination of pretrial release. The Statute of Westminster, therefore, endeavored to institute a standardized practice of bail. Yet, rather than providing a general schema to guide all decisions about bail, Parliament defined which crimes were bailable and which crimes were not subject to bail (Bottomley 1968). The statute also limited the authority of the sheriff by delineating under what conditions release was sanctioned. Interestingly, sheriffs’ authority to determine bail amounts remained intact.

The provisions of the Statute of Westminster persisted for nearly five centuries thereafter. Although several statutes were passed between that time, they did not bring about any significant modifications to the fundamental principles of when or when not bail should be granted. Instead, the statutes subsequent to that of Westminster affected the processes and procedure underlying the granting of bail (Bottomley 1968). For instance, following the Statute of Westminster, a law was passed in 1487 due to issues in the release of nonbailable suspects. In response, Parliament required the use of two magistrates in bail granting proceedings. This law, however, did little in terms of correcting the problem, as it was realized that one judge was releasing suspects without the second judge’s knowledge of the case. Therefore, in 1554, Parliament reaffirmed the previous statute’s requirement but mandated that the bail decision be made in open session with both magistrates present and that the evidence considered in bail decisions be documented on paper.

Although these events document the historical use of bail, it is unlikely that bail was extensively utilized because pretrial detention itself was used infrequently (Pollack and Maitland 1898). As mentioned previously, imprisonment was an expensive and troublesome method of dealing with suspects, and to avoid responsibility of the accused, the sheriff would often entrust him to a friend or relative. Even when individuals were initially jailed, but could not produce the necessary surety, there is evidence that the accused was released. In short, there was a likely disconnect between what was written in law and what was actually practiced (Foote 1965).

Beginnings Of Major Bail Reform In England

Although progress had been made in terms of bail reform, the restrictions placed upon sheriffs via the Statute of Westminster 1275 were not applicable to judges until the late 1600s in “Darnell’s Case.” In 1626, King Charles I sought and failed to obtain money from Parliament, thereby demanding loans from his subjects. After refusing to provide him with funding, numerous individuals were imprisoned without notification of the charges by the King. Of these, five knights responded by filing a habeas corpus petition, claiming that their imprisonment was unlawful and violated not only their right to bail but also their right to trial. Citing “sovereign prerogative,” the court upheld the King’s decision (Duker 1977). Darnell’s Case, consequently, served as the impetus for the Petition of Rights later passed by Parliament in 1628. The Petition acknowledged the rights guaranteed under the Magna Carta and attempted to provide assurances that individuals could not be imprisoned without due process of law nor could they be detained before trial without being informed of the specific charges. Despite Parliament’s efforts, problems persisted, eventually leading to the passage of the Habeas Corpus Act of 1679. The act was intended to protect an individual from unlawful detention; it did not, however, address the issue of excessive bail. Thus, judges were using undue financial conditions of release to detain individuals for indefinite periods of time. As a result, Parliament enacted the English Bill of Rights of 1689, famously mandating that “excessive bail ought not to be required.” Together, the Petition of Rights, Habeas Corpus Act, and the English Bill of Rights formed the modern-day safeguards against pretrial imprisonment (Foote 1965). These concepts were later translated into American colonial law and eventually adopted by the Founding Fathers in the United States Constitution.

Bail In Colonial And Early America

English bail laws of the seventeenth century were considered “important matrices” that greatly informed subsequent American criminal law and procedures (Foote 1965, p. 973). As such, it is hardly surprising to find that the issue of bail was not one of contention at the time of the American Revolution. In fact, the prohibition of pretrial imprisonment was already in place in several colonies even before the English Bill of Rights. Massachusetts, for example, had enacted the state’s Body of Liberties in 1641, considered by Foote (1965) as a “major benchmark in American bail history” (p. 975). This statute was the first in colonial America to delineate a number of individual rights and liberties, many of which were later referenced in the US Bill of Rights. Regarding bail and pretrial detention, the Body of Liberties states that an individual should not be detained by a judge “before the law hath sentenced him thereto, if he can put in sufficient security, bail, or mainprise, for his appearance and good behavior in the meantime, unless it be in capital crimes.. ..” Therefore, unlike in England, where the Statute of Westminster determined which crimes were bailable, this statute provided the right to bail to all individuals not accused of capital crimes.

The value of liberty and the presumption of innocence in early America were evident not only through the Massachusetts Body of Liberties but also through the Frame of Government of Pennsylvania and the New York Charter of Liberties and Privileges of 1682 and 1683, respectively. The Pennsylvania law, in particular, had a major impact in later years as it reemerged in North Carolina in the late eighteenth century and largely found its way into many state constitutions in subsequent decades. This law was particularly important given its advisement of the right to bail in all noncapital cases (Foote 1965). Pennsylvania’s Frame of Government also was the archetype for the bail provisions delineated in the Northwest Ordinance of 1787. With only slight modifications in verbiage, the ordinance stated, “All persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.” By 1789, the absolute right to bail movement was well under way (Foote 1965), and by 1850, most state constitutions included the right to bail (Metzmeier 1996).

The significance of early English and American colonial law is observable not only in state constitutions but also in the US Constitution. Interestingly, the federal provisions of bail were addressed in “separate legislative packages” in 1789 (Foote 1965, p. 971). Following the English Bill of Rights and the Virginia Declaration of Rights in 1776, the excessive bail clause prohibiting high bail amounts was proposed as a part of the Eighth Amendment of the Constitution, whereas the right to bail was addressed in Section 33 of the Judiciary Act. The Eighth Amendment references only the use of excessive bail amounts and the prohibition thereof; it does not, however, grant an absolute right to bail in all cases nor does it define which crimes are bailable. In Foote’s (1965) extensive analysis of the historical context of bail, he concluded that this omission was accidental and one that went unnoticed by Congress. Nevertheless, the Judiciary Act accounted for the omissions in the Constitution regarding bail. Specifically, the act established which offenses were nonbailable (e.g., capital crimes). In capital cases, judges were left to determine whether the suspect must be detained prior to his trial. Through the act, Congress also limited judicial discretion in setting bail. These collective efforts of the first Congress remained largely intact for nearly 150 years thereafter.

Bail In The Nineteenth And Early Twentieth Centuries

Though major developments occurred in eighteenth-century America in terms of bail reform, little changed occurred to the bail laws in England after the Bill of Rights of 1689, that is, until 1826. At this time, a law was enacted that mandated the right to bail in cases where the likelihood of the suspect’s guilt is slight, but that bail should be avoided in cases where the probability of guilt is significant. Only 9 years later, this statute was repealed in place of a new law that granted bail for any crime, regardless of the presumption of guilt. This change in statute was particularly important because it reduced bail decisions to the sole determination of risk of nonappearance (Bottomley 1968). The court in R. v. Robinson (1854) not only substantiated this purpose of bail but also provided a guideline from which determinations of pretrial flight risk could be made. This included three questions that pertained to the nature of the offense, the likelihood of conviction, and the punishment that would be required if convicted. The “Robinson factors” were used in making bail release decisions until bail reform efforts in 1976 (Metzmeier 1996). The nature of the offense was also determined to be an important factor in bail decisions through the ruling in United States v. Lawrence (1835). In this case, the Supreme Court contended that the judge should consider the seriousness of the offense and the accused’s ability to post bail. This statement of the court also reveals two other important elements: judicial discretion in bail decision making and consideration of the individual’s capacity to obtain bail.

The Emergence And Proliferation Of Commercial Bail

Before the nineteenth century, bail in both the United States and England was obtained primarily through the use of sureties with lesser concerns about cash bail. In England, personal relationships were considered to be of great importance in assuring the appearance of the suspect (“Indemnification Contracts” 1949). In the United States, however, cash bail later became the primary means of obtaining release. It is likely that several events converged to bring about the extensive use of this type of bail. First, the social context of that time had changed. Urbanization and the mobility of the population increased, thereby leading to a weakening of community ties. The American frontier presented issues as well. Personal sureties were not easy to come by for a suspect in a new location with few acquaintances and people willing to become sureties (Ryan 1967). Furthermore, it is likely that the expansive and transitory aspects of the frontier provided an incentive to flee, especially if the likelihood of conviction was great (“Bail: An Ancient Practice” 1961). Overall, the old surety system in the United States was rendered impractical for a mobile population. Collectively, these factors, therefore, gave rise to the role of the commercial bail bondsman as an alternative to the personal surety.

In general, commercial bail is an arrangement between a bail bondsman and the accused. For a fee, usually between 5 % and 10 % of the bail amount, the bondsman acts as a surety on behalf of the accused. In theory, if the suspect fails to appear, the bondsman forfeits the bail amount required by the court. Eventually this type of bail all but replaced alternative forms of bail (e.g., surety bond and release on recognizance), such that even well-connected individuals were being released in this manner (Ozanne et al. 1980). The prevalence of money bail and the bondsman were further realized after insurance companies began to serve as underwriters to the bondsmen (“Bail: An Ancient Practice” 1961). The changing climate of the bail system was noted by Justice Holmes in Leary v. United States (1912) who stated, “The distinction between bail and surety-ship is pretty nearly forgotten. The interest to produce the body of the principle in court is impersonal and wholly pecuniary.”

Not long after its inception, the commercial bail bond system was the subject of numerous accusations, including collusion, bribery of public servants, and conducting illegal business (Paulsen 1966). Moreover, some individuals grew concerned over the power and authority readily bestowed upon bondsmen. Although the judge sets the bail amount, often times it is the bondsman who ultimately makes the release decision. In other words, he decides whether or not he will “act as surety” for those considered a good risk (i.e., individuals who are able to pay the requisite fee); thus, those who cannot pay the fee remain in jail (Paulsen 1966, p. 115). Given the power of the bondsman, therefore, it is argued that suspects can effectively thwart the purpose of bail (Ozanne et al. 1980). Additionally, the commercial bail bond system was criticized for its ineffectiveness in ensuring that the accused was returned to court. Even though it would appear to be in the best interests of the bondsman to ensure his client’s appearance as a means to avoid forfeiture of the bail amount, it was found that in some cases, the court waived the bondsman’s forfeiture or even refunded a portion of the forfeited amount. In these instances, the court claimed that the bondsman used “reasonable diligence” in his efforts to produce the suspect (“Bail: An Ancient Practice” 1961, p. 968). Yet, in spite of the numerous complaints of the commercial bail bond system, this system’s use was substantiated in Nicholls v. Ingersoll (1810) and Taylor v. Taintor (1873) in which the powers of the bail bond agent and bounty hunters were delineated by the court.

Inequities Of Bail

As the reliance on money bail began to take shape, injustices throughout the bail system also began to emerge. Indigent defendants, in particular, were perhaps hardest hit – oftentimes detained before trial for periods of time that likely would have exceeded their imposed sentence had they been convicted (Metzmeier 1996). Three early studies on bail exposed the inequity in the bail system, demonstrating that bail decisions were based more often on financial means as opposed to the individual’s risk of flight. Consequently, poorer individuals were more likely to be detained than wealthier individuals (see Beeley 1927; Foote 1954; “A Study of the Administration of Bail” 1958). Paulsen (1966) later described the bail system in the United States as “a costly failure, pressing hardest on the poor” (p. 125).

Bail Reform In The 1960s

Prior to the 1960s, several scholars had already begun to question the efficacy and fairness of the bail system in the United States. In the 1920s, Pound and Frankfurter (1922) protested the use of commercial bail bonding, arguing against its tendency “to prostitute the administration of justice in the inferior courts” (p. 292). Yet, the use of commercial bonds persisted. Shortly thereafter, Beeley’s (1927) study of bail in Chicago revealed the extensive use of surety bail as well as a number of problematic issues, particularly in terms of bail decision making – which often excluded financial and social factors. In their place, judges were making decisions based on the nature of the crime. This study also shed light on bail-setting amounts, which appeared to be largely indiscriminate. Follow-up investigations into the bail system were conducted in Philadelphia and New York in the midto late 1950s. Researchers found similar results to the Chicago study, despite these studies taking place decades later. Moreover, they observed differences in the outcomes between pretrial detainees and individuals who were able to obtain release. Specifically, they found that pretrial detainees were more likely to be found guilty compared to those released on bail; in addition, they were less likely to receive lighter sentences, such as probation or a suspended sentence (see Foote 1954; “A Study of the Administration of Bail” 1958).

Despite these findings, little change occurred. Friedman (1976) suggested that the lack of change was due partly to the nonexistence of major research organizations working as part of a coordinated criminal justice system; thus, there was no central agent or organization to put together a plan of action or to effectively lobby for change. Equally problematic was the “wholly passive role” of the courts regarding bail despite the mounting evidence of the system’s inequities (Foote 1965, p. 959). However, in the Supreme Court case of Stack v. Boyle (1951), Justice Jackson addressed this issue, stating that “the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” Further, he wrote, “In allowance of bail, the duty of the judge is to reduce the risk by fixing an amount reasonably calculated to hold the accused available for trial and its consequence.”

Nevertheless, it was perhaps due to the changing social climate in the 1960s that a concerted effort toward bail reform began to emerge. During this time, scholars, particularly those in the legal realm, grew skeptical of the bail system (Kennedy 1980). Not only were they concerned with the prevalence of money bail and the role of the bondsman, they also voiced concerns in regard to the seemingly disparate applications of bail and the detrimental effects of pretrial detention upon the indigent (e.g., the individual’s loss of freedom, loss of job, and inability to help with his defense). Although bail was originally intended to serve as a means of release, it was argued that the bail system worked in such a manner that it proved more effective in detaining suspects rather than in freeing them (Foote 1965). The reality was that many bail decisions were based on an incomplete, if not absent, assessment of the defendant, despite claims that the following factors be considered in the bail decision making process: a person’s ties to the community, likelihood of guilt, and financial ability to post bail. Instead, these decisions were frequently based on the nature of the offense. Consequently, a significant number of individuals were detained before trial regardless of their risk of flight.

The reality of this situation served as the impetus for the Vera Foundation and the Manhattan Bail Project and the emergence of pretrial service agencies in the 1970s. The Vera Foundation and the Manhattan Bail Project, specifically, were intended to address the issue of pretrial detention of impoverished defendants in New York City (Friedman 1976) but eventually inspired the major bail reforms that occurred during this decade. At a cocktail party in 1960, Louis Schweitzer – a chemical engineer and businessman – was surprised when he discovered that thousands of people in New York City were imprisoned before they had even gone to trial. After a tour of the jail facilities in the city and discussions with key players about jailed suspects who could not afford to post bail, Schweitzer offered his friend, Herbert Sturz, the task of developing a strategic plan (Friedman 1976). Thus, the Vera Foundation was created in 1961, followed shortly that same year by the commencement of the Manhattan Bail Project. Underlying this project was the assumption that nonfinancial factors were an effective alternative to money bail in terms of deterring the accused from flight (Ryan 1967). Therefore, the Vera Foundation, along with assistance from New York University law students, implemented one of the first control group experiments conducted in an American court. The Manhattan Bail Project was devised to first gather information about the individual’s background and community ties from the accused and, second, to provide the judge with recommendations as to who would be a good candidate for release on personal recognizance. By the study’s end in 1964, the court had granted release on personal recognizance to 60 % of the defendants recommended by the Vera Foundation. Only 1 percent of these defendants failed to appear.

The success of the Manhattan Bail Project sparked national interest and prompted a number of subsequent bail projects in other cities across the country. In light of the study’s findings, Attorney General Robert Kennedy formed the Allen Committee to serve as an advisory board to the United States Department of Justice. In 1963, the Allen Committee published a report, recommending that the federal system broadens its use of release on personal recognizance. Yet, the report failed to include decision making guidelines addressing who should be released in this manner (Friedman 1976). Later that same year, efforts were made to conduct the first National Conference on Bail and Criminal Justice. Attended by over 400 policymakers, criminal justice officials, attorneys, and practitioners in May 1964, the conference focused on specific alternatives to money bail, keeping in mind the findings from the Manhattan Bail Project. According to Friedman (1976), there was a significant correlation between the conference and the rate at which other bail agencies grew. After the bail study in New York, 89 bail projects had been implemented.

The impact of the Manhattan Bail Project also spreads to other countries, including Canada and England. Inspired by the project, Canadian reformer Martin Friedland took to task the study of bail in Toronto’s court system. Additionally, reform efforts in England eventually led to the Bail Act of 1976 (Metzmeier 1996). In the United States, Congress enacted its own bail reforms through the Bail Reform Act of 1966. This act reaffirmed what had been addressed in previous statutes but went a step further to “order” that the accused in a noncapital case be released under minimal conditions (e.g., personal recognizance or personal bond) unless it was decided by the judge that either method would be insufficient in guaranteeing the accused’s return appearance. The statute also advised against the consideration of community safety in noncapital cases. Instead, this element should only be considered in capital cases or after the individual has been convicted.

Additional Reform Efforts

Although not as popular, the Manhattan Summons Project borrowed largely from its predecessor. This study, however, focused on an earlier stage in the process, particularly at the stage of arrest. In this case, release was to be determined by the police. The Summons Project commenced in the spring of 1964 at the New York City Police Department’s 14th precinct. The study was designed in such a way that an individual arrested for a summonable offense was first interviewed by a member of the research team. Information, similar to that of the bail study, was collected and verified, and then recommendations were made to the precinct’s desk officer. It was recommended that either a summons be issued (with instructions to appear in court 14 days later) or that the individual proceeds through the traditional criminal justice process (i.e., arraignment). The results of the three-month study were so successful that the project was eventually expanded to three precincts and then expanded to all of Manhattan. In the first 2 years of the project, over 36,000 summons were issued. Of those, only 5.3 % of the individuals who received a summons failed to appear in court (Friedman 1976).

Additional efforts to reform the bail system were undertaken in Illinois. In 1963, Illinois enacted the state’s Ten Percent Deposit Plan as an alternative to financial surety bonds. Rather than going through a third party to gain release, individuals pay ten percent of the bond amount to the court, thus eliminating the need for bond agencies. The Illinois Code of Criminal Procedure was also amended to emphasize that criminal sanctions, rather than financial penalties, be used to guarantee a suspect’s appearance (Paulsen 1966). Since that time, three other states have followed suit and eliminated commercial bonding (e.g., Kentucky, Oregon, and Wisconsin); others have experimented with similar deposit bail systems, such as in Massachusetts.

Setbacks In Bail Reform

While strides were being made in terms of bail reform to (1) reduce the reliance on money bail and (2) make bail decisions based only on flight risk, other events were taking place that contradicted these reforms. In Hinton v. United States (1965), for example, the court provided justification for the use of money bail, stating that “it has been the Court’s experience that indigent defendants are often in the community on bond, having obtained the means therefor [sic] from family or friends.” The court further argued that the bond provided by the suspect’s kinship served as a deterrent to flight because the accused has an “obligation” to those ties as well as to the court.

Setbacks were also experienced in 1969, with efforts to amend the Bail Reform Act of 1966. Despite observations by the 1967 President’s Commission on Law Enforcement and Administration of Justice that too many people were being detained and that release decisions were not based on fact, the United States Department of Justice submitted a proposal to Congress to amend the Bail Reform Act of 1966. The proposal recommend that federal courts be permitted to detain suspects for up to 60 days, particularly individuals accused of certain violent crimes and those who are deemed dangers to the community despite the strictest conditions of release imposed. Furthermore, for individuals not subjected to this provision, it was recommended that the court be allowed to consider the suspect’s dangerousness to the community when making decisions regarding pretrial release conditions (Mitchell 1969).

The proposal by the Department of Justice was only one of many attempts in 1969 to amend the 1966 Bail Reform Act to include a provision of preventive detention. None of these bills were passed by Congress (Kennedy 1980). However, growing concern was being voiced regarding the possibility of dangerous suspects being released into the community under the act. Congress, in turn, allowed for the inclusion of a preventive detention provision in the District of Columbia Court Reform and Criminal Procedure Act of 1970. Suspects meeting any of the three criteria for pretrial detention were subject to a pretrial detention hearing. At the hearing, the judge must make a determination that no release conditions will “reasonably ensure” the community’s safety. He must also find that there is a significant likelihood of the suspect’s guilt. Finally, if pretrial detention is imposed, the case must be tried within 60 days.

The “Get Tough” Movement In The 1980s

Despite the bail reform efforts in the 1960s, the 1980s “get tough” movement in crime control stalled its progress. This time was marked by increased crime rates and the public’s diminishing confidence in the justice system’s rehabilitative model. As a result, policymakers and criminal justice officials responded with a number of sentencing reforms and statutes in an effort to curb the crime problem. The bail system did not remain unaffected for long, however. Members of Congress grew concerned about the possibility that suspected felons out on bail were committing crimes. Additionally, they recognized that judges were setting high bail amounts and imposing excessive conditions of bail for individuals they believed were dangerous (Metzmeier 1996). In light of these events, Congress repealed the Bail Reform Act of 1966 through the passage of the Bail Reform Act of 1984 – a statute that allowed for the consideration of the accused’s perceived dangerousness to the community and permitted preventive detention. Critics argued that a preventive detention provision, such as the one in the Act of 1984, “pits the fundamental common law principle of the presumption of innocence against the desire by police and judges to protect the public from purportedly dangerous defendants” (Metzmeier 1996, p. 399–400). In addition, some scholars believed that it violates the suspect’s constitutional rights and undermines a system based on the presumption of innocence. Finally, others recognized the issues preventive detention poses because of the difficulty in predicting who will endanger the community (Kennedy 1980). Nevertheless, in United States v. Salerno (1987), the Supreme Court upheld the statute, claiming that “Congress formulated the detention provisions not as punishment for dangerous individuals, but as a potential solution to the pressing societal problem of crimes committed by persons on release.” Therefore, they believed that this was a “legitimate regulatory goal.”

Criminology’s Increasing Role In The Study Of Bail

Up until the 1980s, a majority of the literature on bail in the United States was generated and advanced by legal scholars. Legal scholars played a particularly active role in the discussions on bail reform due to the constitutional issues surrounding the bail system. In the 1980s, however, more criminologists began to conduct studies akin to the research carried out decades before in the early part of the twentieth century. Of interest were the factors related to bail release decisions, risk of flight, and the outcomes of pretrial detention (e.g., conviction). One such study found that due to the timing of bail hearings, which oftentimes occur shortly after arrest, judges are not equipped with sufficient information on which to base their decisions. Consequently, there are many inaccuracies in predicting which subjects will commit crimes during their pretrial release (Gottfredson and Gottfredson 1988). In the examination of the factors related to release, some researchers found that the offense charge and type of counsel affected the likelihood of a suspect’s release (e.g., Fleming 1982; Holmes et al. 1987). Although the study of bail is an area that has remained relatively underresearched since that time, the role of the criminologist has increased in subsequent decades.

Bail In The Present Day And Future Trends

Goldkamp (1993) contended that the American bail system has experienced at least two generations of major bail reform in the United States. The first generation occurred in the 1960s, as substantial efforts were made to move the system toward bail processes that emphasized pretrial release through nonfinancial factors. This generation was followed by major bail reform efforts in the 1980s, which in many ways, propagated the principles of bail that reformers of the 1960s were attempting to eliminate. Nevertheless, both generations of reform were marked by conflicting ideas as to what should be the underlying purposes and functions of the bail system specifically, the presumption of innocence versus community safety – a conflict that has pervaded the American criminal justice system as a whole.

The conflicts and issues of the American bail system in the past continue to persist today. More specifically, dissension remains as to the factors weighted in bail decisions and the types of bail that are utilized. Regardless, the current trend in the bail system is one that has reverted back to a reliance on surety bonds provided by a bail bondsman and a system that still considers community safety as an important requisite for release. The former is reflected in national-level statistics of felony defendant pretrial releases in state court which indicate that approximately 33 % of the releases between 1990 and 2004 were obtained through surety bonds (Cohen and Reaves 2007) and that this trend has continued upward through 2006 (Cohen and Kyckelhahn 2010). Drawing from data collected by the Bureau of Justice Statistics (BJS), Clark (2010) suggested that the increased use of money bail is inversely related to the reduction of individuals on pretrial release. In fact, the number of pretrial detainees in jail has been on the rise since 1998, thereby further contributing to the jail crowding problem. The latter is manifested in statutes such as the 2001 Anti-Terrorism Act and the 2002 Patriot Act. Both statutes have extended the crimes for which pretrial detention is applicable in the federal system. In addition, most states have amended their laws to reflect the consideration of public safety in the decision to grant bail.

The present state of the bail system in the United States, therefore, has sparked the attention of politicians, scholars, lobbyists, and the public once again, with staunch proponents on both sides of the bail issue, including efforts by some to privatize the system. Lobbying groups, such as the American Legislative Exchange Council, are increasing their efforts to further privatize the criminal justice system through a post-conviction release strategy that mimics the commercial bail in pretrial release. Other groups, such as the American Bar Association and the Pretrial Justice Institute, however, continue to urge that the bail system should impose the least restrictive conditions and rely on personal recognizance and other nonfinancial forms of bail (e.g., conditional releases and unsecured bonds). Interestingly, there remains a lack of empirical research as to which approach works best in terms of appearance rates and cost-effectiveness. Even still, it has been suggested that a third generation of the bail system is underway (Schnacke et al. 2011), concerned primarily with the use of empirically based screening tools in making pretrial release decisions and evidence-based decision making in release decisions through the use of pretrial service agencies. Assessments of some pretrial screening tools have already produced positive results (e.g., Lowenkamp et al. 2008). However, such initiatives remain arguably highly nuanced compared to the more common and generalized commercial bond practice. In fact, one rather robust empirical study found that defendants from 75 of the largest counties in the USA who were release via a surety bond (bail bondsman) were considerably less likely to fail to appear in court (28 % less likely) compared to similar defendants released on personal recognizance (Helland and Tabarrok 2004). Further, absconders released via a bondsman were 53 % to be at large for long periods of time compared to absconders released on personal recognizance. Moreover, national efforts reminiscent of those in the 1960s, including the National Symposium on Pretrial Justice, have taken place as recently as 2011 with the intent to further advance America’s system of bail. Whatever the course, the objective remains clear – finding the balance between community safety and minding the long-standing constitutional presumption of innocence. In the end, there is a paucity of quality research on “what works” in regard to pretrial release practices. Few quantitative studies are generalizable to the criminal justice system as a whole, and scholars have only recently begun to such important questions with solid criminal justice data and advanced empirical research designs. Qualitative inquiries into the issue are altogether absent from the scholarly literature surrounding bail release in the United States.


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