Bail: What are we even talking about?

While listening to a the radio a few weeks ago, I came across a very interesting story that touched on the United States bail system and the role bail bond agencies play within this system. The radio segment told the story of an individual who couldn’t afford to pay the amount of money set by the judge for her boyfriend’s release and thus required the service of a bail bond agent in order to be released from custody.

Many will go through life without ever having to worry about the term “bail” and its definition. However, given the fact that over 12,000,000 people are arrested in the U.S. every year, it’s probably not a bad idea to have a basic understanding of what “bail” actually means. In this post, I will provide readers with a thorough understanding of the many terms that make up the bail system. I will also try to clarify some of the misleading information that’s available.

It is common to see a prosecutor quoted in a news article demanding that a judge set a high money bail amount in order to ensure that the dangerous defendant remains in jail. The news articles will cite to the hundreds of thousands of dollars and sometimes even millions that the defendant will be required to “post” in order to be released from custody while he or she awaits trial.

On the one hand, this type of news coverage provides the general public with an important association: bail and the criminal justice system. On the other hand, it also provides a flawed assumption: that bail is what defendants must pay in order to be released from custody when they are arrested. Private bail bond agencies similarly attempt to confine the term “bail” within these limited boundaries by specifically defining bail as the amount of money set by the judge.

This notion of what bail means is not necessarily wrong. However, it is misleading and limited for three reasons: it assumes that bail must always require a money amount, it also assumes that a dangerous defendant will not be released unless they pay the amount set by the judge, and it ignores the fact that a defendant who hasn’t been convicted is supposed to be deemed innocent until proven guilty. This post will clarify why bail is not limited to a money amount and why sometimes defendants (even those deemed very dangerous) are released even when they cannot pay the money bail set by the judge. This post will also question how the definition of bail has been construed so as to ignore the important reasons bail exists in the first place.

So what does “bail” actually mean?
The bail system is a way for the accused to be released from custody while they await trial. Hence, bail is something the defendant gives the court in order to be released from custody. The term “bail” can include a sum of money that must be paid immediately, but it can also include a bond (promise). This promise can be required from the defendant if the court believes they are not a threat to public safety or it can also be required from a bail bond agency. This brings me to the service that’s provided by a bail agent: in exchange for a fee running anywhere from $200-$10,000, a bail agent provides the court with a promise that the defendant will appear in court. In other words, the defendant pays the bail bond agency a sum of money and the bail bond agency promises the court that the defendant will show up to their court date. In this instance, if the defendant fails to appear, the bail bond agency is supposed to be the responsible party.

Before I begin to illustrate what a bail bond is, I would like to clarify two things. First, bail can include the amount of money set by a judge. For example, where bail is set at $100,000.00, if the defendant is able to pay that amount, he will be released from custody. The amount he paid will be returned to him so long as he shows up to his scheduled court date. Second, bail is used for specific and necessary purposes such as ensuring the presence of the defendant at trial and for public safety. Bail is not a means to keep a defendant in custody.

So, what happens when the defendant doesn’t have $100,000.00 sitting in the bank? Or, how about those defendants (and yes, they do exist) who are not likely to skip a court date and who are not a threat to public safety? This is where the term “bail bond” comes into play, or where I argue that it should come into play. A bond is a formal written agreement in which a person undertakes an obligation(s). If the person fails to perform that obligation, they are required to pay a certain amount of money.

In the context of the criminal justice system, a bail bond can include the court merely asking the defendant to sign a promise agreement where he agrees to appear in court. The court can then set an amount of money that the defendant will be required to pay should he fail to show up to court. The fundamental obligation here is ensuring that the defendant will appear in court when he is scheduled to be there as his failure to do so is what triggers the obligation to pay. By this logic, it would make sense that defendants are afraid of having to pay this large sum of money and will therefore appear in court in order to avoid it (not to mention the fact that failure to appear is a crime in and of itself). As mentioned above, if the defendant has paid money to the court, in doing so he also agrees that he will return to court for his scheduled court date. Those who have already paid are ensured to appear in court because they risk having to forfeit that money. However, if the defendant is very wealthy, perhaps there is no amount that can ensure they will appear in court.

How does the idea of public safety fit into all of this? If the defendant is so dangerous that he poses a significant danger to society, how does a certain dollar amount ensure that the defendant, when released, will not go out and well…be dangerous? The fact is no money amount can ensure that a dangerous defendant will not be dangerous. Therefore, the same logic that allows us to conclude that a money amount may ensure a defendant’s appearance in court cannot possibly allow us to conclude that a certain amount of money can ensure public safety. The answer to these questions is far from simple. However, a bail system that prides itself in making public safety the number one priority must include other means by which to achieve this goal–means other than a set money amount. My next posts will go deeper into the definition of what a bail bond is, the role that bail bond agencies play in this system, and the ways in which this system has failed to ensure public safety.