Pretrial Process of Bail

Taxpayer-funded pretrial services programs claim that the pretrial process of bail costs U.S. taxpayers billions of dollars and infringes on the liberty and rights of millions of Americans.  

They are referring to the liberties and rights of arrested individuals who allegedly committed a crime. 

For someone to be arrested in the U.S., law enforcement must have probable cause, which comes from the Fourth Amendment of the U.S. Constitution, that a crime has been committed.  In the U.S. probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered.  It is also used to refer to the standard to which a grand jury believes that a crime has been committed. 

A more common definition is a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true.  

It is a standard by which to make an arrest, conduct a search or obtain a search warrant.  A judge further determines in court if probable cause exists to believe a defendant committed a crime before they can be prosecuted.  When an arrest is made based on probable cause and a judge determines probable cause exists, it does not infringe on the liberty and rights of those arrested.

A judge sets the terms by which an individual will be released from jail.  Organizations that wish to eliminate commercial bail claim financial release infringes on the liberties and rights of arrested individuals.  On the one hand they claim that people languish in jail because they are too poor and cannot afford to pay for a bail bond.  Yet they also claim with a "typical fee of 10 percent, over $14 billion if paid annually to bondsmen by arrested people, primarily from low-income communities."

In other words, they will say anything, even if it is contradictory, to continue to grow large taxpayer-funded bureaucracies in an attempt to eliminate a private industry that is the most effective means of pretrial release and uses no taxpayer funds.

And by the way, national organizations that promote the use of taxpayer-funded pretrial services programs and seek to eliminate private industry, also seek to get even more taxpayer dollars.  On all of their websites they prominently promote "DONATE NOW" buttons to make a tax-deductible donation to help continue their work.  They even have workplace giving campaigns specifically to seek dollars through federal and charitable giving campaigns!  And of course, they accept all major credit cards.

The commercial bail industry has been around since the founding of of the United States because of its effectiveness in making sure defendants appear in court.  It will continue to do so.

Bail: Not a Complicated System

The U.S. bail system has evolved from a system developed in the middle ages when the English Parliament passed the Habeas Corpus Act establishing how magistrates would set bail terms.

The U.S. Constitution states that bail shall be based on "sufficient surety" that a defendant will appear.  It really is quite simple: the object of bail is to ensure the appearance of a defendant for all required court appearances until disposition of their case.  The commercial bail industry has been proven by numerous national and state studies to be the most efficient and effective means of pretrial release.

Several large national organizations, whose mission is to eliminate the use of commercial bail, have stated that the use of money bail prevents arrested individuals from maintaining their family, work, pursuit of education, etc.  Commerical bail facilitates these goals not hinders them.

Let's start by understanding exactly what is a bail bond. 

Arrested individuals can be released from jail in the following ways:

• Release on recognizance whereby the defendant promises to appear for all court proceedings.
• Cash bail whereby the defendant posts the full amount of the bail with the court.
• Unsecured financial bail whereby the defendant is released and if they fail to appear for any court proceeding, they must then pay the court the full amount of the bail.
• Cash deposit bail whereby a defendant pays the court a small percentage of the bail amount, usually 10 percent, which is refunded upon successful completion of their case.
• Surety bail whereby a private and licensed bail agent appointed by a surety company will guarantee the defendant's appearance for all court proceedings for a small premium paid by the defendant, most often 10 percent, and who must pay the court the full amount of the bond for a failure to appear.

What the commercial bail industry finds interesting is that these national organizations who claim that any financial release is "bad," are only advocating for the elimination of commercial bail.  They seem to fully support all other forms of financial release.

Commerical bail is an insurance product; a contract between the Court, the defendant and the surety.  The non-refundable one-time fee, or premium, is the cost of assuming the risk of appearance for the defendant.

The commercial bail industry thinks it is extremely important to let the taxpayers know the benefits the industry provides and to make them aware of the differences between commercial bail and taxpayer-funded pretrial services systems.

So we will continue to be a resource for the public and others who wish to know more about the commercial bail industry.  We will keep the conversation going around the best criminal justice policies that promote the well-being and justice for all individuals and the community.

Public policy affects public safety.