Bail in the United States

In pre-independence America, bail law 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 states that had not already done so enacted their own versions of bail law.[3]

For example, Section 9 of Virginia's 1776 Constitution originally stated, "excessive bail ought not to be required..." In 1785, Virginia added an additional protection to its constitution, "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."[4]

The prohibition against excessive bail in the Eighth Amendment is derived from the Virginia Constitution.[5] That prohibition applies in federal criminal prosecutions but, as the Supreme Court has not extended that protection to the States through the Fourteenth Amendment, the Eighth Amendment protection does not apply to defendants charged in state courts.[6]

In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. That law specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act provided 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.[7]

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.[7]

In 1966, Congress enacted the Bail Reform Act of 1966, which expanded the bail rights of federal criminal defendants by giving non-capital defendants a statutory right to be released pending trial, on their personal recognizance or on personal bond, unless a judicial officer determined that such incentives would not adequately assure the defendant's appearance at trial. In the event that further assurance was deemed necessary, the judicial officer was required to select an alternative from a list of conditions, such as restrictions on travel.[8] When setting bail, judicial officers were required to consider a defendant's family and community ties, employment history, and past record of court appearances.[9]

In non-capital cases, the Act did 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.[10] Individuals charged with a capital crime, or who had been convicted and were awaiting sentencing or appeal, were to be released unless the judicial officer had reason to believe that no conditions would reasonably assure that the person would not flee or pose a danger.[8]

The 1966 Act did not provide significant benefits to those defendants who were required to post bail, but lacked the financial means to raise and post bail.[9] Due to the need to produce information about an arrested person in advance of bail hearing, the law also worked best for defendants who had access to lawyers who could help them compile that information in the short amount of time between arrest and hearing.[10]

The 1966 Act was particularly criticized within the District of Columbia,[11] where all crimes formerly fell under federal bail law. In a number of cases, persons accused of violent crimes committed additional crimes when released on their personal recognizance. Even after being arrested on additional charges, some of those individuals were released yet again.[12]

D.C.'s Committee on the Judiciary and Public Safety 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 non-capital cases.[13]

In the 1960s, some volunteer bail reform projects emerged, advocating new pretrial services programs. For example, the Manhattan Bail Project was formed by the Vera Institute of Justice in 1961, to advance the theory that defendants with prominent ties to the community, such as a stable occupation or long marriage, could be confidently released on the strength of their promise to return.[14] This concept was later termed release on recognizance (ROR). The New York city government eventually assumed oversight of the program, although the Vera Institute of Justice design new ROR systems after defendants failed to appear. As of 2011, the Criminal Justice Agency (CJA) continues to provide ROR recommendations and oversee the status of released defendants.[14]

Another reform program was the VISTA (Volunteers in Service to America) bail bond program, formed in Baltimore in 1968. The program defined a mathematical system to determine when a person charged with a crime was likely to voluntarily appear in court, such that the person might receive a personal recognizance bond.[15] The system was organized around a point-based marker, where defendants earned points for positive merit and were deducted points for poor behavior.

A research program based in New York City tested the effects of a pretrial release agency and deposit bail. An analysis of the data accumulated over the course of the program indicated that the program was poorly executed by judges, and that bail reform initiatives were perceived by some judges as allowing preventive detention.[16] In 2008, the New York Times wrote "posting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world".[11]

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act (AWA) which included amendments to the 1984 Act in response to a highly publicized case of sexual abuse and murder of a child. The amendments provide that any persons accused of a crime involving a minor must be confined, under curfew, and must report regularly to a law enforcement agency.

Critics of the AWA argue that Congress should change the amendments so that a defendant has the opportunity to challenge release conditions that include tracking and monitoring.[22] They argue that the AWA violates defendants’ constitutional rights and undermine the objectives of the 1984 Act by stripping defendants of their rights without significant benefit to the public. Critics propose that defendants charged with offenses that trigger the AWA should be permitted to attempt to prove that its strict pretrial release conditions are unnecessary in their individual cases.[23]

The impact of the law is subject to debate. One study on the Eastern Federal District of California found that average detention length and the overall detention rate has remained relatively unchanged before and after 1984, the group most affected by the law are repeated drug offenders, and the rates of pretrial crime and failure to appear on the trial date have stayed relatively low since the law's passing.[24]

California uses a bail schedule system, and judges in state court are directed to refer to the bail schedule while also taking into account the defendant's criminal record and whether the defendant poses a danger to the community.[31]

The California legislature attempted to eliminate cash bail entirely.[32] In August 2018, Governor Jerry Brown signed into law a bill which sought replace all cash bail with pretrial detention based on court risk assessment beginning in October 2019.[33] The bill was opposed by both defenders of the current system and advocates for change, including the American Civil Liberties Union and Human Rights Watch.[34] In January 2019, that coalition gathered the required signatures to prevent the bill from going into effect and put the law to November 2020 voters as a California ballot proposition.[35] 2020 California Proposition 25 resulted in a "no" majority and a successful veto of the change.

In California bail is heavily regulated by the California Penal Code,[36][37] California Insurance Code[38] and California Code of Regulations.[39] All violations of the aforementioned constitute felony violations via California Insurance Code 1814[40] - including administrative regulatory codes such as record keeping, how solicitations are conducted, collateral and treatment of arrestees. Under California law it is a crime for a bail bondsman to solicit business at a county jail.[41][42][43]

By state law, "the ability to make bail is to be regarded, and proof may be taken upon this point." Tex. Crim. Proc. Code Ann. § art. 17.15

Some courts in Texas, however, have determined bail in accord with a fixed schedule, without consideration of the defendant's ability to pay the scheduled amount.[44]

In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.[45]

A common criticism of the system of cash bail is that it creates a system where wealthier defendants are less likely to be incarcerated pre-trial than poorer defendants, even if they are accused of the same crime and pose the same risk to the community and judicial process.[52][53]

In the high-profile cases of Bernie Madoff and Marc Dreier, the defendants avoided pre-trial detention despite huge flight risks, simply because they had the money to pay the court exorbitant sums. This is in accordance to the current interpretation of the Bail Reform Act of 1984, which allows the wealthy to avoid pretrial detainment by paying for highly restrictive measures that ensure constant supervision. This means that a poor defendant being held in jail while waiting for a trial, while a wealthy defendant would only face house arrest while waiting trial for the same offense. Bail reformists claim that this is a direct violation of the Fourteenth Amendment's Equal Protection Clause, which states that laws must be applied against all citizens equally.[54]

Reform campaigners argue that the cash bail system results in unnecessary detentions, and propose reforms that will reduce the jail population.[55]

Many advocates for placing harsher restrictions on bail enforcement and decreasing the amount of detainees out on pretrial release point to the argument that allowing bail greatly increases the risk of allowing arrestees out on bail to skip their trial (known as flight risk). However, a study conducted by Gerald R. Wheeler and Carol L. Wheeler published by the Review of Policy Research finds that this is hardly the case. The article focuses on bail reform in the United States and specifically targets the relationship between being released on bail and the flight risk of arrestees not showing up to their trial. Since many opponents of bail reform during the time believed that allowing bail would result in a decrease of arrestees showing up for their trial dates, this article tests that belief by analyzing randomly selected felony cases in Houston, Texas. The paper concluded that the flight risk of arrestees out on bail was extremely minimal, as only 2% of all defendants on pretrial leave avoided their trial date. The study also concluded that the effect of pretrial status, whether a criminal was detained or not before their trial, did not have an effect on the ultimate conviction.[56]

Whether a result of pre-trial detention or not, incarceration has adverse effects resulting in many defendants' inability to maintain employment, access mental and physical healthcare, and engage in constant communication with their family and friends.[57]

Pretrial release conditions placed on youth are largely ineffective, often causing them to commit further crimes by violating the conditions. This means that bail conditions ultimately create a cycle of criminality, trapping juveniles into the prison system rather than helping them escape it.[58] This effect on the youth community is a large reason why activists lobby for bail reform, seeking to prevent the next generation from being trapped in the school-to-prison-pipeline. The VISTA bail bond program in Baltimore in the 1960s, which dealt with 16-20 year old defendants,[15] suggested that while youth are more susceptible to negative consequences of pretrial release conditions, they are also more receptive to positive bail reform programs.

There exist socio-economic arguments against bail reform as well. For example, one cost-benefit analysis of bail pricing using data from the 1981 Philadelphia Bail Experiment estimated optimal bail prices to be similar to higher levels before the Bail Reform Acts of 1966 and 1984.[59]

An attorney's ability to defend their client is greatly hampered when their client is placed in pretrial detainment. Jailed defendants are difficult to work with due to restricted access and visiting hours, and have minimal time with their attorneys when compared to those who are granted pretrial release. This lack of coordination between the attorney and defendant makes it impossible to craft a strong defense, given that the defendant will often lack witness coaching.[60] Defense attorneys that specialize in criminal trial have gone as far as to say that pretrial detention limits a defendant's ability to exercise his or her constitutional rights.[61]

In 2014, a study done over 975 New Jersey cases tracked a defendant's ability to set bail and the final outcome of their trial, and concluded that pretrial detention adversely impacts the length of sentencing in cases of conviction. That is to say, within the same offense type, those unable to post bail received longer sentences than those able to.[62] There have also been other studies that indicate that pretrial detainment sets the odds against the defendant, reducing their chance of acquittal. Attorneys attest that jurors are almost always aware of defendants' bail status, which creates an implicit bias against their client.[61]

Bail bondsman located outside of the New York City Criminal Court in Manhattan, NYC

Even if it is eventually refunded, producing the bail money is a huge expense to the defendant and their family.[63] The United States is one of the few countries in the world that permit defendants to use a bail bondsman. In return for a non-refundable payment, the bail bondsman will pay the bail amount and receive it when the trial is over. Bail bonds are a profitable industry, making $20 million a year in profit according to a 2012 study.[64] Bail reform campaigners have criticized the bail bond industry for profiting off poor defendants and for creating perverse incentives by involving a for-profit industry in the judicial process, which is related to wider criticism of the prison-industrial complex.[65][66]

The bail system is further criticized for being arbitrary in how it is applied.[53][67] Legally, bail determination is based on four factors: seriousness of the crime, ties to the community, the flight risk posed by the defendant, and the danger posed by the defendant to his or her community. California Penal Code section 1269b provides an example of the factors courts are directed to consider.[68]

In reality, bail determination may also take into account extraneous factors. Some studies have found judicial bias, where a defendant's race, class, or gender affect bail.[62] A 1984 study found that when judges were given specific policy guidelines, people with similar convictions were given similar bail amounts.[69] There is concern that great variability across judges yields variability in decisions for identical candidates. The reason for such disparity is that different judges may assign different weights to factors such as flight risk or community ties.[70] This is an oft cited reason as to why bail reform is necessary, as ambiguity in the bail decision making process may lead to unfair and disparate outcomes.

Even for bail determination based on the danger posed by the defendant to his or her community, critics note that the government's definition of “dangerous” defendants who may not be allowed to go on bail have a tendency not to be dangerous or avoid their hearings at all, suggesting that the definition is too wide and needs to be reformed.[69]

There is reason to believe that a correlation exists between class status and bail decisions. Recent analysis of data taken from Florida bail hearings revealed that indigent defendants with public defenders were more likely to be denied bail when compared to those with retained (hired) counsel, but that when they were awarded bail, it was set lower. Several suggested explanations for this result include higher skill level of retained counsel and prison overcrowding.[60] Many prison systems face overcrowding in the modern area of mass incarceration, and setting unusually low bails appear to be the judge's way of relieving pressure for local prisons.

Moreover, a court's decision to grant or deny bail has a direct impact on the outcome of a criminal case. Incarcerated defendants are significantly less able to help in his/her defense for freedom in comparison to someone on bail who is unrestricted or perhaps conditionally restricted to home confinement. They are also unable to arrange meetings with suspected witnesses, and/or provide their attorney with important information about the case, thus creating logistical barriers. Furthermore, the paper finds that because more defendants are now less likely to be allowed a pretrial release, the prosecution's bargaining position is enhanced in plea negotiations, where incarcerated defendants are promised time off in exchange for their cooperation or plea of guilty.[71] People that are denied bail are more likely to plead guilty in thoughts that they will lose at trial. Those denied bail are often sentenced to longer amounts of time than those who are granted pretrial release.[71]

Moreover, bail policies and bail decisions have been demonstrated to be applied disproportionately harmfully against black and Latino defendants, particularly males.[66][72] This can be attributed to internalized racial prejudices among judges and bail officers, and also to how current bail policies fail to protect them from such discrimination. When combined with the bail system's favor towards the wealthy, it is found that people of color of low socioeconomic backgrounds suffer most in the justice system, a further violation of the Equal Protection Clause.

Test data from the bail bond market in New Haven, Connecticut, also shows the existence of discrimination based on race when bail is set for minority defendants. Specifically, black and Hispanic defendants generally received disproportionately high bail charges. In order to fight against racial discrimination, some suggest a “color-blind” bail solution that sets bail based on the average offender, regardless of race or gender.[73]

Samuel Wiseman, a J.D from Yale Law School and a critic of the Bail Reform Act of 1984, argues in a paper published by the Fordham Urban Law Journal that the Excessive Bail Clause of the Eighth Amendment protects criminal defendants from governmental discrimination and coercion and that the Bail Reform Act of 1984 removes these protections. Wiseman continues by stating that the Bail Reform Act of 1984 is unconstitutional because it allows judicial officer to consider certain individual characteristics of a defendant which the Eighth Amendment asks not to consider. Wiseman concludes his article with a statistical analysis of arrestees out on bail before and during the passing of the Bail Reform Act of 1984. He finds that since the passing of the Bail Reform Act, the number of pretrial detentions has risen nearly 40%.[74]

As of January 2020, three states have abolished cash bail for the majority of court cases. In 2014, New Jersey enacted reforms that took effect on January 1, 2017. All criminal defendants are now assessed with a point-based system to determine whether they should be released from custody, held in jail until trial, or subjected to alternative procedures (including house arrest, electronic monitoring, and, in limited cases, cash bail) to ensure public safety and the defendant's appearance in court.[26] Alaska adopted a similar reform in 2016, which took effect in 2018.[27] New York adopted a similar reform in early 2020,[75] but this was largely rolled back in April of that year.[76]

2020 California Proposition 25 vetoed the state legislature's proposed abolition of cash bail in the state.

Some reform proposals focus on not abolishing cash bail but reforming it. These include giving guidelines to judges or mandatory instructions to make sure cash bail is set in a more consistent way.[70] The second solution, however, presents a problem in that it reduces the justice system's flexibility, and loses humanity. Many reformists prefer a more individualized bail procedure, citing the importance of considering circumstances and how no set of guidelines can adequately and fairly address every possible scenario.[22] Fixing outcome disparity while retaining judicial flexibility remains a paradox that bail reformists have yet to solve, and is a point where many activists diverge. Another solution is to pass federal laws. This would mean amending the Bail Reform Act of 1984 to explicitly require courts to take into account a defendant's economic status.[54]

In states where no reform has yet been acted, some organizations provide not-for-profit bail bonds to allow poor defendants to be released pre-trial.

Those who support decarceration in the United States want to abolish pretrial detention and restrictions entirely. This proposal is closely tied to the prison abolition movement.

Bail reform may be difficult to implement because judicial officers may not want to take the risk of releasing an arrestee pretrial who may not show up for his trial, or may commit an additional crime while released pending trial, consequences for which the public might blame the judicial officer.[77]