A man or women sits in jail for a petty crime. It may be simple theft or possession of a small amount of marijuana. Both non-violent misdemeanor crimes. This person has been in jail for weeks awaiting trial. This has resulted in the loss of his or her job, apartment, means of transportation, a cost to taxpayers, and a great deal of mental stress. In the next cell over, someone convicted of a similar crime is released and able to go back to work, hire a lawyer, and face a relatively small punishment consisting of community service, counseling, and a fine.
Why would two people, convicted of similar crimes with similar criminal history be treated so different? Are the scales of justice out of sync? The difference is the first person in this hypothetical did not have the money to post bail. The later had the money to post bail. A recent NPR story on this matter depicted several stories where this is not just a hypothetical – its real and it effects tens of thousands of people across the United States.
The modern U.S. bail system, like many of our legal systems, grew out of old English standards. In England, up until the 1300s, the local sheriff would determine if a suspect could be released on bail and what that bail amount would be. This arbitrary system was replaced in 1275 by the Statute of Westminster. The statute clearly stated which crimes allowed for bail. In colonial America the bail system was patterned after English standards until the 8th amendment of the U.S. Constitution was adopted.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Bail laws remained unchanged for most of our nations history until the Bail Reform Act of 1966. The Bail Reform Act provides that a non-capital defendant (those not charged with a capital offense such as murder) “shall…be ordered released pending trial on his personal recognizance” or on personal bond unless the judicial officer determines that these incentives will not adequately assure his appearance at trial.
Still, the current system of holding persons charged with a crime is broken. Is it fair that two people convicted of similar crimes should be treated differently based soley on their ability to pay a few hundred dollars? Are we not burdening the poor with such a system? Are we not burdening tax payers by housing inmates which are a low flight risk?
The bail system certainly provides a valuable service to society by reducing overpopulation in jails and making it the responsibility of a private enterprise to ensure a defendant appears in court. I think it’s necessary that we strike a middle ground between the current bonding system and pretrial release programs. In supervised pretrial release, defendants are released on their promise to adhere to certain court-ordered non-financial conditions, such as reporting in person on a regular basis. Compliance is closely monitored by pretrial services or other criminal justice staff. Failure to comply can result in return to jail. Supervised pretrial release is a vital component in the spectrum of release options. It permits the safe release of moderate-risk defendants who are ineligible for less restrictive options.
A common balance could be struck by keeping the status quo. Provide for near immediate release of defendants charged with bailable crimes – if they can post bail. This gives some the option of returning to a normal life with a monetary incentive to appear in court. Should they violate the terms of their bond, fugitive recovery agents would still be needed to apprehend them. In addition after some point (say 1-2 weeks) the judicial system should be able to review the charges levied against the incarcerated defendants, as well as review their past criminal history to determine if they are eligible for a pretrial release. Such a system would reduce overcrowding in county jails and the associated expenses of incarcerating those that are eligible for bail as well as have a positive impact on all defendants lives by allowing them to resume a semblance of normalcy in their day-to-day activities.
I am very interested in hearing what others think on this matter.
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The fact of the matter is that the scenario you present is certainly not the “norm.” Given 48 hours, those defendants who are able to make bail will make bail. Those that are still incarcerated either have a history of failure to appear in court, are a danger to society or have a lengthy criminal record. Judges and magistrates who set bail after arrest attempt to adhere to bail schedules and these factors are taken into consideration when bail is determined. Many more defendants with violent pasts are being released unsecured than ever before. Pretrial release programs have absolutely nothing to do with jail overcrowding. Jail overcrowding is a judicial issue and cases that are moved efficiently through the court system reduces overcrowding. These programs boast that they save thousands of dollars each year but in reality, they release violent offenders at the cost of the taxpayer as in the recent case in Greensboro, NC where three people were murdered (one a 6-yr-old child) and two of the four defendants were released on electronic house arrest after being charged with 1st degree murder. Accountability is the issue and if a magistrate or judge sets a secured bond on a defendant, they certainly have a reason to do so.
Thanks for the solid rebuttal. Would love to hear from someone on the pretrial release side of things.
If the scenario you presented above should occur, wouldn’t you blame the defendant who committed the crime knowing if he were caught, he wouldn’t be able to afford bail or an attorney? Don’t you think it’s about time we start holding these defendant’s accountable for their crimes instead of creating more welfare programs that allow them “free bail” and “free attorneys” at the tax payers expense? Aren’t we enabling criminals instead of teaching them a lesson?
Based on your scenario above, I would say the next time this defendant decides to break the law, maybe he will think twice before doing it!
Brandon, there is much to be digested with regards to the efficiency of the public funded pretrial release program. Too, many contributions of the private bail industry are omitted from the analogy given above. If you truly wish to know more about this, then it will be necessary for a sit down meeting. I assure you that all that is required is an open and unbiased mind and one which wishes to address this concern from the stance of the tax paying citizen. To much has been dismissed based on private verses public bail. I believe you would be surprised at what you will discover. If the citizens truly knew the truth, they would be outraged. I’m speaking of absolute verses he/she said with regards to fraudulent claims to fame and savings. I will be more than happy to set something up. At the very least, you then would have a better idea of what to look for and what kind of questions to ask if and when the public funded pretrial release program contacts you. The truth here is all you’ll witness on this discussion board is a rock throwing contest. No disrespect intended but I’m just stating the truth.
Is the bail bonds system working? Clearly, we think it is.
I am very anti-commercial bail bonding, however your proposal of a blended system is interesting. I have heard many bail bonding groups stating that PTS is fine for indigent defendants and all others should pay for their release. Given that I have never heard anyone define “indigency” and that I’ve been told by those in the field that about 90-95% of all urban defendants qualify for a public defender (making them “indigent” I would assume), I’m not sure where the for-profit bail agent would fit into this.
Is the system working? If functions, I’ll give it that. However, it is a hold-over from another time when punishment was more monetary and fleeing justice more likely. I believe commercial bail bonds to be obsolete, and let me say that is in no way a comment on the thousands of great folks out there who run bail agencies and believe in what they do. It’s the system that I think is ready for a sea change.
Thanks!