Bail is a form of surety deposited with a court in exchange for releasing a suspect from incarceration – with the assurance that this suspect will appear for their trial date. If they should fail to appear, the bail is forfeited and additional charges can be brought against the defendant, whether or not they are found guilty of the charges for which they were accused. When a bail bondsman is used to post bail, the fee paid is not refundable as it is the fee for a purchased insurance on the suspect.
Early American Ideals
Bail laws in the United States were originally based upon English law. A few of the new colonies automatically guaranteed bail for detained suspects; once the Declaration of Independence was born in 1776, the rest of America’s colonies enacted bail laws of their own. The Constitution’s 6th Amendment requires that a detainee must “be informed of the nature and cause of the accusation,” allowing the suspect to demand bail if they are accused of a “bailable” offense. The Judiciary Act, passed by Congress in 1789, specified the kinds of criminal acts which were bailable (non-capital offenses) and established new criteria for judicial “discretionary boundaries” in setting a suspect’s bail.
The Bail Reform Act of 1966 stated that a “non-capital defendant is to be released, pending trial, on his personal recognizance or on personal bond” unless the judge ruled those incentives would not reasonably assure the subject’s trial appearance. The judge then had to choose an alternate bail from a conditions list, such as travel restrictions. In the case of non-capital charges, this Act did not allow the judge to take a suspect’s danger to his community into consideration. It did allow that a judge consider such danger in a capital case or after conviction.
Current Bail Guidelines
In 1984 our Federal Law replaced the Bail Reform Act of 1966, and allowed pre-trial detention of suspects based upon their possible danger to the community (prior bail statutes had only determined bail according to the detainee’s risk of flight). The current bail law is codified at United States Code, Title 18, Sections 3141-3150, see: http://www.law.cornell.edu/uscode/text/18/part-II/chapter-207.
Though individual states vary as to the intricacies of bail law, usually a suspect charged in a non-capital crime is presumed to be bailable. Some states have adopted laws similar to Federal law; i.e. permitting pretrial detention when a suspect is charged with serious or violent crimes, and they are demonstrated to be a flight risk or danger to their community.
Modern bail bond businesses are rooted in the system first established by Peter P. and Tom McDonough in San Francisco in 1898. Pete was a colorful character, who spent 8 months in the Alameda County Jail for bootlegging, eventually seeking a pardon from Calvin Coolidge. Throughout the years, Pete McDonough developed a tight network with outlying police precincts, and was able to quickly convince judges to sign an order of release for his clients.
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