Monday 26 March 2012

A History of Bail Laws

The formal history of bail began all the way back in 17th century England. In 1677 the Habeas Corpus Act was passed which allowed magistrates to set terms for bail. Bail granted accused persons the opportunity to offer money or property to the court in order to receive temporary freedom while awaiting trial. Up until 1689 there were no restrictions on excessive bail. In that year the English Bill of Rights addressed that issue. It proclaimed that "excessive bail ought not be required". Ever since then many other countries have been inspired to adopt bail laws, including of course the United States, which says, in amendment six of her constitution, that all arrested persons "be informed of the nature and cause of the accusation” they face and also allows a person to demand bail if he or she is arrested for a bailable offence. After the passing of the Judiciary Act in 1789 all non-capital offences in the United States became bailable, while capital offences were bailable only as the judge saw fit. As the legal system became more complicated bail fees became more and more expensive, and the process itself became more confusing. In fact, it became so confusing that many people who didn't have the benefit of proper legal representation and could easily have made bail didn't manage to do so, and remained in custody much longer than they needed to.

It was with this in mind that US Congress passed the Bail Reform Act in 1966, the first major change in bail law since the Judiciary Act was passed. The purpose of this legislation was to make the bail process easier, more comprehensive, and more fair to the poor. Another change in bail law occurred in 1984, with the Bail Reform Act revision, which made the process even easier than before, for those likely to be innocent. However, what it also did was make sure the accused were held before trial if they were deemed to be dangerous to the community. Things such as repeat offences, serious crimes, and the possibility of being a flight risk could all now make an accused person ineligible for bail. All defendants who do meet the eligibility requirements of bail must have a bail hearing.

Despite all of this history the general bail process itself has not changed much since 1677. Nowadays it occurs as follows: the arrested individual is booked at a police station. This involves an officer recording the suspect's details such as name, age, place of residence, occupation and so forth. The officer will then take the suspect's mugshot, take their fingerprints, conduct a criminal background check, and confiscate all items on their person. These will be returned after the suspect has been released. If the suspect has been accused of a relatively non-serious crime they may post bail immediately after this has all been completed, and leave. Otherwise the suspect will remain in a police jail cell, typically for less than 48 hours, as they await their bail hearing. In some rare cases the arresting officer will not book a suspect, but rather issue a citation requiring them to turn up to court. A lot of factors determine what amount bail is set at, or whether or not bail is set at all, including the severity of the alleged crime, past criminal record, the suspect's history of showing up for past criminal court hearings and of course the discretion of the judge.

One of the most common types of bail is a Cash Bail. This type of bail requires the accused to pay the full bail amount, in cash. This is as opposed to a Property Bond  - which allows a suspect to provide property to act as a bond - and a Bail Bond - which allows the suspect's friends or family to contact a bail bondsman. Bail Bond is an interesting one. The bail bondsman accepts full responsibility for the suspect's appearance in court, and is required to pay the full amount of the bond if the suspect does not appear in court. In return the bail bondsman accepts a premium, usually about 10%, from the friend or relative. If the suspect doesn't appear in court this is called 'jumping' or 'skipping' bail. If this happens with a Bail Bond the bail bondsman might hire a bounty hunter to track down the suspect, depending on whether or not doing so would be legal in the state. It is not legal in the District of Columbia, Illinois, Kentucky, North Carolina, Oregon, South Carolina,  or Wisconsin. The bounty hunter works independently, out of his own office. In some states the bounty hunter does not actually have to be licensed. In others there are special requirements. For example, in Louisiana Bounty Hunters are required to wear clothing indicating that they are bounty hunters. Overall, In the United States bounty hunters claim to catch 31500 bail jumpers each year, which adds up to about 90% of all people who jump bail.

1 comment:

  1. The system of posting money or property in exchange for temporary release from custody dates back from 13th century England. The bail system was established to create a balance between the social classes when being accused of a crime. Before then, only those who had the money or property could ever avail of this “social benefit.” After a time, entrepreneurs realized that, with enough capital, they could offer the same service to everyone after receiving a portion of the amount as insurance.

    Sterling Easterday

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