Glossary of Terms
Misuse of terms can be caused by simple lack of education. That “bail” is used primarily to refer to amounts of money is likely due only to a lack of education for not only the public and the press, but also for some criminal justice practitioners. Other terms are often so ingrained in usage that they seem correct even when they are misused. For example, the terms “pretrial” and “pretrial services” are sometimes used as short-hand nouns referring to pretrial services agencies or programs (e.g., “Pretrial wants to eliminate commercial bail bonding.”), instead of their proper use as (1) a period of time, and (2) the actual services provided by the pretrial services agency or program.
These predominantly legal terms are difficult enough without any layer of confusion and misuse. Accordingly, this glossary of terms and phrases has been written to provide current definitions, in context, and with historical references as needed, to clarify a comprehensive set of common terms relating to bail and the pretrial release and detention decision. The authors hope that the glossary will be used to find consensus on common terms and phrases to avoid needless distractions from the important work of making the administration of bail more effective. References to Black’s Law Dictionary (or “Black’s”) are to the Ninth Edition.2
Black’s calls it “[a] procedural system, such as the Anglo American Legal System, involving active and unhindered parties contesting with each other to put forth a case before an independent decision maker.” According to Michael Asimow, “[t]he central precept of the adversary system is that the sharp clash of proofs presented by opposing lawyers, both zealously representing the interests of their clients, generates the information upon which a neutral and passive decision maker can most justly resolve a dispute.”3 It is typically contrasted with the inquisitorial system of justice, in which the judge controls most of the pretrial and trial procedures, including framing the issues, supervising criminal investigations and discovery, questioning and cross-examining witnesses, and summarizing evidence. Understanding the adversary system’s importance at bail is critical, for initiation of adversary proceedings triggers certain rights, such as the right to counsel. In practice, judges comfortable operating in a system in which they are to oversee two sides in the adversarial clash of proofs often find that the typical bail hearing is overwhelmingly lopsided, many times operating with no defense counsel, and instead proceeding with defendants who are unprepared to argue issues concerning their pretrial release. The adversary system presupposes somewhat equal adversarial opponents, but bail hearings often lack that equality.
In criminal law, bail is the process of releasing a defendant from jail or other governmental custody with conditions set to reasonably assure public safety and court appearance. “Bail” is perhaps one of the most misused terms in the field, primarily because bail has grown from the process of delivering the defendant to someone else, who would personally stand in for the accused if he or she did not appear for court, to presently being largely equated with sums of money. It is now clear that, whatever pure system of “standing in” for a particular defendant to face the consequences of non-appearance in court may have existed in the early Middle Ages, that system was quickly replaced with paying for that non-appearance first with goods (because standardized coin money remained relatively rare in Anglo Saxon Britain until the Eighth and Ninth Centuries) and later money. The encroachment of money into the process of bail has since been unrelenting. And, unfortunately to this day, the terms “money” and “bail” have also been joined in an unholy linguistic alliance.
This coupling of money and bail is troubling for several reasons. First, while money bail may have made sense in the Anglo Saxon criminal justice system – comprised of monetary penalties for nearly all bailable offenses – the logic eroded once those monetary penalties were largely replaced with corporal punishment and imprisonment. Second, while perhaps logically related to court appearance (many people believe that money motivates human action, and in most state statutes, money amounts are forfeited for failure to appear), to date money has never been empirically related to it – that is, no studies have shown that money works as an added incentive to appear for court. Third, the purpose of bail itself has changed over the past 100 years from reasonably assuring only court appearance to also reasonably assuring public safety, and research has demonstrated that money is in no way related to keeping people safe. Indeed, this notion is reflected in most state statutes, which routinely disallow the forfeiture of money for breaches in public safety. Fourth, money bail does not reflect the criminal justice trend, since the 1960s, to make use of own recognizance or personal recognizance bonds with no secured financial conditions. And finally, in most jurisdictions monetary conditions of release have been overshadowed by the numerous nonfinancial conditions designed to further bail’s overall purpose to provide a process for release while reasonably assuring court appearance and public safety.
Garner has correctly noted the multiple definitions of bail that have evolved over time, most of which presuppose some security in the form of money.4 For example, besides being defined as the security agreed upon, bail was also once defined as a person who acts as a surety for a debt, and was often used in sentences such as, “The bail is supposed to have custody of the defendant.”5 However, because much has been learned over the last century about money at bail (including its deleterious effect on the concept of pretrial justice), and because the very purpose of bail has also changed to include notions of public safety in addition to court appearance (preceding a new era of release on nonfinancial conditions), defining the term “bail” as an amount of money, as many state legislatures, criminal justice practitioners, newspapers, and members of the public do, is flawed. Thus, a new definition of the term is warranted.
Bail as a process of release is the only definition that: (1) effectuates American notions of liberty from even colonial times; (2) acknowledges the rationales for state deviations from more stringent English laws in crafting their constitutions (and the federal government in crafting the Northwest Territory Ordinance of 1787); and (3) naturally follows from various statements equating bail with release from the United States Supreme Court from the late 1800s to 1951 (in Stack v. Boyle, the Supreme Court wrote that, “federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction”)6 and to 1987 (in United States v. Salerno, the Supreme Court wrote that, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”).7
Bail as release accords not only with history and the law, but also with scholar’s definitions (in 1927, Beeley defined bail as the release of a person from custody), the federal government’s usage (calling bail a process in at least one document), and use by organizations such as the American Bar Association, which has quoted Black’s Law Dictionary definition of bail as a “process by which a person is released from custody.”8 States with older (and likely outdated) bail statutes often still equate bail with money, but many states with newer provisions, such as Virginia (which defines bail as “the pretrial release of a person from custody upon those terms and conditions specified by order of an appropriate judicial officer”),9 and Colorado (which defines bail as security like a pledge or a promise, which can include release without money),10 have enacted statutory definitions to recognize bail as something more than simply money. Moreover, some states, such as Alaska,11a Florida,11b Connecticut,11c and Wisconsin,11d have constitutions explicitly incorporating the word “release” into their right to bail provisions.
The phrase “or other governmental custody” is added in recognition of the fact that bail, as a process of releasing a defendant prior to trial, includes various mechanisms occurring at various times to effectuate that release, for example, through station house release from a local police department. The term “with conditions” is added with the understanding that by changing the status of an individual from citizen to defendant in a court proceeding, each release of any particular defendant contains at least one condition – attendance at trial – and typically more to reasonably assure court appearance as well as public safety.
An agreement between the defendant and the court, or between the defendant, the surety (commercial or noncommercial surety), and the court, originally designed primarily to assure the defendant’s appearance in court and later expanded in the federal system and most states to include public safety protections. Bail bonds are sometimes called “appearance bonds,” as all bail bonds are minimally appearance bonds, but that term does not fully reflect the purpose of bail, which is to normally afford release while reasonably assuring court appearance and public safety.
Black’s Law Dictionary defines “bond” generally as an obligation or a promise, and “bail bond” as “[a] bond given to the court by a criminal defendant’s surety to guarantee that the defendant will duly appear in court in the future and, if the defendant is jailed, to obtain the defendant’s release from confinement. The effect of release on bail bond is to transfer custody of the defendant from the officers of the law to the custody of the surety on the bail bond, whose undertaking is to redeliver the defendant to legal custody at the time and place appointed in the bond.” A broader definition, however, correctly takes into account the fact that many defendants are released without third party sureties, and recognizes the dual purpose of bail.
In the law there are numerous types of bonds, and specifically several different types of “bail bonds,” all of which fall under one of two categories of pretrial release from custody or confinement: (1) those that require a secured financial condition of release; and (2) those that do not.12 The United States Department of Justice, Bureau of Justice Statistics (“BJS”), provides the following categories and explanations of financial bonds that require immediate payment or secured guarantee of payment prior to a defendant’s release from detention:
[Compensated] Surety bond – A bail bond company signs a promissory note to the court for the full [money] bail [bond] amount and charges the defendant a fee for the service (usually 10% [or more] of the full [money] bail [bond] amount). If the defendant fails to appear, the bond company is liable to the court for the full [money] bail [bond] amount. Frequently the [money bail] bond company requires collateral from the defendant [or friend or relative of the defendant for the full amount of the bail bond] in addition to the fee.
Deposit bond – The defendant deposits a percentage (usually 10%) of the full [money] bail [bond] amount with the court. The percentage of the [money] bail [bond] is returned after the disposition of the case, but the court often retains a small portion for administrative costs. If the defendant fails to appear in court, he or she is liable to the court for the full [money] bail [bond] amount.
Full cash bond – The defendant posts the full [money] bail [bond] amount in cash with the court. If the defendant makes all court appearances, the cash is returned. If the defendant fails to appear in court, the bond is forfeited.
Property bond – Involves an agreement made by a defendant as a condition of pretrial release requiring that property valued at the full [money] bail [bond] amount be posted as an assurance of his or her appearance in court. If the defendant fails to appear in court, the property is forfeited. Also known as ‘collateral bond.’13
BJS also provides the following categories of bonds that do not require immediate payment or guarantee of payment prior to a defendant’s release from detention:
Release on recognizance (ROR) – The court releases some defendants on a signed agreement that they will appear in court as required … [which] includes citation releases in which arrestees are released pending their first court appearance on a written order issued by law enforcement or jail personnel. [In many jurisdictions, a ROR (also known as “Own Recognizance,” “Personal Recognizance,” or “PR”) bond may also be an unsecured financial bond if it has money attached].
Unsecured bond – The defendant pays no money to the court but is liable for the full amount of [the money] bail [bond] upon failure to appear in court.
Conditional release – Defendants are released under specified conditions. A pretrial services agency usually conducts monitoring or supervision, if ordered for a defendant. In some cases, such as those involving a third-party custodian or drug monitoring and treatment, another agency may be involved in the supervision of the defendant. Conditional release sometimes includes an unsecured bond.14 There is growing recognition that “typing” bail bonds based on a single condition of release – money, such as when labeling a bail bond a “surety bond” or a “cash bond” – is an archaic practice, and thus the better practice (as reflected in the ABA Standards) is to refer either to “release” or “detention,” with release having one or more conditions –financial or non-financial – as limitations on pretrial freedom.
The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.20
According to Black’s, a citation is (1) a “court ordered writ that commands a person to appear at a certain time and place to do something demanded in the writ; (2) A police issued order to appear before a judge on a given date to defend against a stated charge, such as a traffic violation.” The second definition seems to reflect more common usage. Citation release is a large but often ignored part of pretrial justice, which involves a host of decisions that occur from arrest until case disposition, including whether to release an arrestee with a citation versus taking that person to jail. Despite the fact that pretrial release has not been historically viewed as a police function, through their discretionary decision-making ability to issue citations in lieu of arrests in certain cases, “the police are often in the best position to provide for the speedy release of criminal defendants.”21 Pretrial literature now typically discusses citation release under the topic of “delegated release authority,” which includes release of defendants prior to their first appearance by field officers and jail staff, in addition to pretrial services program staff.
Following the principle of releasing defendants under the least restrictive conditions, the American Bar Association Criminal Justice Standards on Pretrial Release “favor use of citations by police . . . in lieu of arrest at stages prior to the first judicial appearance in cases involving minor offenses.”22 In Part II of the ABA Standards, “Release by Law Enforcement Officer Acting Without an Arrest Warrant,” Standard 10-2.1 states that “[i]t should be the policy of every law enforcement agency to issue citations in lieu of arrest or continued custody to the maximum extent consistent with the effective enforcement of the law. This policy should be implemented by statutes of statewide applicability.”23 Commentary to that standard explains that “emphasis on citation release (as well as ‘stationhouse’ release) was a logical extension of bail reform presumptions favoring pretrial release and release under least restrictive alternatives as well as encouraging diversion from the justice system altogether.”24 ABA Standard 10-2.2 recommends mandatory issuance of citation for minor offenses, and would require law enforcement agencies to document in writing the reasons for choosing to take a suspect into custody at a secure facility on a minor offense.25 Moreover, Standard 10-2.3 recommends that,
[e]ach law enforcement agency should promulgate regulations designed to increase the use of citations to the greatest degree consistent with public safety. Except when arrest or continued custody is necessary, the regulations should require such inquiry as is practicable into the accused’s place and length of residence, family relationships, references, present and past employment, criminal record, and any other facts relevant to appearance in response to a citation.26
Citations are also sometimes called “desk appearance tickets,” and are most used when the risk to public safety and for failure to appear for court are perceived as low.
[p]ending abolition of compensated sureties, jurisdictions should ensure that responsibility for supervision of defendants released on bond posted by a compensated surety lies with the surety. A judicial officer should not direct a pretrial services agency to provide supervision or other services for a defendant released on surety bond. No defendant released under conditions providing for supervision by the pretrial services agency should be required to have bail posted by a compensated surety.
Commentary to that Standard provides the following reasoning:
[o]ther provisions of the Standards emphasize that financial bail should be used only if other conditions are insufficient to minimize the risk of nonappearance, and that, if [secured] financial conditions are imposed, the bail amount should be posted with the court under procedures that allow for the return of the amount of the bond if the defendant makes required court appearances. There is no reason to require defendants to support bail bondsmen in order to obtain release (and to pay the bondsman a fee that is not refundable even if they are ultimately cleared of the charges), and the practice of [simultaneously] providing for supervision by the pretrial services agency simply encourages perpetuation of the undesirable practices associated with commercial bail bonding. It also drains supervisory resources from often understaffed and overworked pretrial services agencies, making it more difficult to supervise the defendants for whom they properly have responsibility.30
The American Bar Association at one time had a position on “double supervision” in its Standards for Pretrial Release, but it has since has removed it “so as to leave no doubt as to the imperative nature of the recommendation that [commercial sureties] be abolished.”31
So called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ or interferes with rights ‘implicit in the concept of ordered liberty.’ When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. This requirement has traditionally been referred to as ‘procedural’ due process.
In the administration of bail, due process considerations include fundamental fairness arguments that high money bail bonds lead to defendants being unfairly punished prior to trial, as well as concerns that high money bonds and the resulting detention affects the fairness of a defendant’s trial and the ultimate disposition of the case. When financial conditions of release result in a defendant’s pretrial detention without the type of hearing envisioned by the U.S. Supreme Court in Salerno, a procedural due process claim might also prove successful.
Over the years, this argument has been bolstered by language from Supreme Court opinions in cases like Griffin v. Illinois, which dealt with a defendant’s ability to purchase a transcript required for appellate review. In that case, Justice Black stated that, “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”34 Moreover, sitting as circuit justice to decide a prisoner’s release in two cases, Justice Douglas uttered the following dicta frequently cited as support for equal protection analysis: (1) “Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to have enough property to pledge for his freedom?”;35 and (2) “[N]o man should be denied release because of indigence. Instead, under our constitutional system, a man is entitled to be released on ‘personal recognizance’ where other relevant factors make it reasonable to believe that he will comply with the orders of the Court.”36 Overall, despite scholarly arguments to invoke Equal Protection Clause analysis to the issue of bail, the federal courts have not been inclined to do so.
Excessiveness must be determined by looking both at federal and state law, but a rule of thumb is that term relates overall to reasonableness. In United States v. Salerno, the Court stated as follows:
The only arguable substantive limitation of the Bail Clause is that the Government's proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil. Of course, to determine whether the Government's response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. Stack v. Boyle, supra. We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail.37
Thus, to determine excessiveness, one must “look to the valid state interests bail is intended to serve for a particular individual and judge whether bail conditions are excessive for the purpose of achieving those interests. The state may not set bail to achieve invalid interests [flight and public safety are valid; at least one federal court has held that the state’s interest in setting bail at a level designed to prevent the arrestee from posting it is invalid, see Wagenmann v. Adams, 829 F.2d 196, 211-14 (1st Cir. 1987), and bail as punishment would also undoubtedly be an invalid state interest], nor in an amount that is excessive in relation to the valid interests it seeks to achieve.”38
The law of Stack v. Boyle is still strong: when the state’s interest is assuring the presence of the accused, “[b]ail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the Eighth Amendment.”39 Nevertheless, as the language in Salerno indicates, financial conditions (i.e., amounts of money) are not the only conditions vulnerable to an excessive bail claim. Any unreasonable condition of release (e.g., a nonfinancial condition having no relationship to reducing or ameliorating an identified risk, or that exceeds what is needed to assure the constitutionally valid state interest) might be deemed constitutionally excessive.40
It is often referred to as the “Great Writ,” in recognition of its importance among all other writs, and has been described by the United States Supreme Court as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”44 As Justice Stevens once wrote, “[t]he great writ of habeas corpus has been for centuries esteemed the best and only sufficient defence of personal freedom. Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.”45
Habeas corpus derives from the famous 1676 English case of an individual known only as Jenkes, who was held for two months on a charge that, pursuant to statute, required admittance to bail. Jenkes’ case, and cases like it, ultimately led to Parliament’s passage of the Habeas Corpus Act of 1679, which established procedures to prevent long delays before a bail hearing was held. The United States explicitly incorporated the right of habeas corpus into the Constitution in Article 1, Section 9, which reads, “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” The first Judiciary Act provided habeas corpus for federal prisoners, and in 1867 Congress expanded the process to allow federal courts to grant writs of habeas corpus in all cases, including state cases, where any person may be restrained in violation of the Constitution or U.S. law or treaty. Each state typically also has its own habeas right and procedure, which is often incorporated into an overall postconviction remedy provision.
Like “bail,” habeas corpus is a process, implicating a unique legal procedure and body of legal precedent.
The phrase “ensure the integrity of the judicial process” was used in United States v. Salerno,47 but only in a passing reference to the argument on appeal. Reviewing the court of appeals ruling, however, sheds some light on that argument. The principle contention at the court of appeals level was that the Bail Reform Act of 1984 violated due process because it permitted pretrial detention of defendants when their release would pose a danger to the community or any person.48 As the appeals court noted, this contention was different from what it considered to be the clearly established law that detention was proper to prevent flight or threats to the safety of those solely within the judicial process, such as witnesses or jurors. The appeals court found the idea of potential risk to the broader community “repugnant” to due process and, had the Supreme Court not reversed, the distinction between those in the judicial process and those outside of it might have remained. However, by upholding the Bail Reform Act’s preventive detention provisions, the Supreme Court forever expanded the notion of public safety to encompass consideration of all potential victims, whether in or out of the judicial process. Today, use of the phrase typically begs further definition so as to clarify whether judicial integrity means specifically court appearance or public safety, more general compliance with all court-ordered conditions of one’s bail bond, or some other relevant factor.
Commentary to the ABA Standard recommending release under the least restrictive conditions states as follows:
This Standard's presumption that defendants should be released under the least restrictive conditions necessary to provide reasonable assurance they will not flee or present a danger is tied closely to the presumption favoring release generally. It has been codified in the Federal Bail Reform Act and the District of Columbia release and pretrial detention statute, as well as in the laws and court rules of a number of states. The presumption constitutes a policy judgment that restrictions on a defendant's freedom before trial should be limited to situations where restrictions are clearly needed, and should be tailored to the circumstances of the individual case. Additionally, the presumption reflects a practical recognition that unnecessary detention imposes financial burdens on the community as well as on the defendant.
The least restrictive principle is foundational, and is expressly reiterated throughout the ABA Standards when, for example, those Standards recommend citation release or summonses versus arrest. Moreover, the Standard’s overall scheme creating a presumption of release on recognizance, followed by release on nonfinancial conditions, and finally release on financial conditions is directly tied to this foundational premise. Indeed, the principle of least restrictive conditions transcends the Standards and flows from even more basic understandings of criminal justice, which begins with presumptions of innocence and freedom, and which correctly imposes increasing burdens on the government to incrementally restrict one’s liberty.
More specifically, however, the ABA Standard’s commentary on financial conditions makes it clear that the Standards consider secured money bonds to be a more restrictive alternative to both unsecured bonds and nonfinancial conditions: “When financial conditions are warranted, the least restrictive conditions principle requires that unsecured bond be considered first.” Moreover, the Standards state, “Under Standard 10-5.3(a), financial conditions may be employed, but only when no less restrictive non-financial release condition will suffice to ensure the defendant's appearance in court. An exception is an unsecured bond because such a bond requires no ‘up front’ costs to the defendant and no costs if the defendant meets appearance requirements.”
For 175 years, the right to bail has not been a right to release, it has been a right merely to put up money for release, and 1964 can hardly be described as the year in which the defects in the bail system were discovered.
* * *
What has been made clear today, in the last two days, is that our present attitudes toward bail are not only cruel, but really completely illogical. What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?55
Some confusion surrounding the phrase derives from a line in Bell v. Wolfish, in which the Court stated that the presumption of innocence “has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.”59 The temptation to use this quote to erode the role of the presumption in the administration of bail is dampened considerably by the scope of concerns addressed in the Bell opinion. As the Court expressly stated: “We are not concerned with the initial decision to detain an accused and the curtailment of liberty that such a decision necessarily entails. . . . Instead, what is at issue when an aspect of pretrial detention that is not alleged to violate any express guarantee of the Constitution is challenged, is the detainee’s right to be free from punishment, and his understandable desire to be as comfortable as possible during his confinement, both of which may conceivably coalesce at some point.”60 Bell was essentially a conditions-of-confinement case, and the “no application” language, above, was uttered in discussing a prisoner’s right to be free from the correctional facility’s practice of “double bunking” inmates.
Thus, the presumption of innocence everything to do with bail and the decision to release or confine a particular inmate, and the Bell language should in no way diminish the strong statements concerning the right to bail found in Stack v. Boyle, in which the Court wrote,
From the passage of the Judiciary Act of 1789, to the present Federal Rules of Criminal Procedure, federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.61
That the broader notion of a right to bail necessarily triggers serious consideration of the presumption of innocence is also clearly seen in United States v. Salerno, through Justice Marshall’s dissent in which he wrote, albeit unconvincingly, that “the very pith and purpose of [the Bail Reform Act of 1984] is an abhorrent limitation of the presumption of innocence.”62
The committee that drafted the Standards recognizes that, as of the time of their adoption in 2004, many jurisdictions do not routinely provide for the appointment of counsel to represent defendants at first appearance. However, if the first appearance is to be fair and meaningful, it is vitally important to ensure that defendants are represented effectively at this proceeding. Attorneys who understand the importance of the decisions made at first appearance, are familiar with the contents of pretrial services reports and with available release options, and are able to advocate effectively for their clients – on the basis of consultation with the defendant and even very brief contact with family members or friends of the defendant – can make the difference between liberty and confinement for defendants during the pretrial period.71
The relevant ABA Standard concerning defendant representation recommends only that “[i]f the defendant is not released at the first appearance and is not represented, counsel should be appointed immediately. The next judicial proceeding should occur promptly, but not until the defendant and defense counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel.”72 Commentary to the Standard, however, better reflects the ABA’s position on the issue:
[i]n some jurisdictions, defendants are represented by counsel, at least provisionally, at their first appearance, but this is not a universal practice. ABA policy, however, clearly recommends that provision of counsel at first appearance should be standard in every court. Thus, the Providing Defense Services Standards call for counsel to be provided to the accused ‘as soon as feasible, and, in any event, after custody begins, at appearance before a committing magistrate, or when formal charges are filed, whichever occurs first.’
Provision of counsel at the first appearance is especially important if consideration is going to be given to detention or to release on conditions that involve a significant restraint on the defendant’s liberty.73
Fairly recent data support the recommendations contained in the ABA and NAPSA Standards. Noting that previous attempts to provide legal counsel in the bail process have been neglected, in 1998 the Baltimore, Maryland, Lawyers at Bail Project was created to demonstrate empirically whether or not lawyers mattered during bail bond setting hearings. Using a controlled experiment (with some defendants receiving representation at the bail hearing and others not receiving representation) the Project found that defendants with lawyers: (1) were over two and one-half times more likely to be released on their own recognizance; (2) were over four times more likely to have their initially-set bail bond amounts reduced at the hearing; (3) had their money bail bond reduced by a greater amount; (4) were more likely to have the money bond reduced to a more affordable level ($500 or under); (5) spent less time in jail (an average of two days versus nine days for unrepresented defendants); and (6) had longer bail bond review hearings than defendants without lawyers at first appearance.74 In a paper reporting the results of this study, the authors concluded:
[L]awyers do make a difference. The randomized controlled experiment conducted by the Lawyers at Bail Project in Baltimore supports the conclusion that having a lawyer present at a bail hearing to provide more accurate and complete information has far-reaching consequences. The accused is considerably more likely to be released, to respect the system and comply with orders, to keep his job and his home, and to help prepare a meaningful defense. The public at large benefits, too, from the unclogging of congested court systems and overcrowded jails and the resulting savings in taxpayer dollars.75
At the time of their publication, Colbert et al. noted that sixteen states refused to provide lawyers at this initial proceeding altogether, and twenty-six states declined to provide defendant representation at bail bond settings in all but a few counties. According to the authors, only eight states and the District of Columbia provided a right to counsel at first appearance. See Pro Se, Right to Counsel
Some argue, incorrectly, that the right to bail means only the right to have bail set. This argument ignores clear statements by the United States Supreme Court indicating that the right to bail normally means a right to pretrial freedom, such as the following two statements from Stack v. Boyle: (1) “federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.”76; (2) “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.”77). The argument also conflicts with the following seminal statement from United States v. Salerno: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”78
The legal structure of the right to bail differs among the states. Nine states, like the federal system, have no right to bail articulated in their constitutions. Approximately twenty one states have “traditional” and fairly broad right to bail provisions, which were modeled after Pennsylvania’s law of 1682. The remaining states have amended their constitutions to allow for preventive detention in various ways.
Nothing in the text of the Bail Clause limits permissible Government considerations solely to questions of flight. The only arguable substantive limitation of the Bail Clause is that the Government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil. Of course, to determine whether the Government’s response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. We believe that, when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail.83
It was in the Salerno opinion that Chief Justice Rehnquist uttered the famous statement (and rallying cry for all those now seeking bail reform), “[i]n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”83 See Preventive Detention
342 U.S. 1 (1951). The first major Supreme Court case to address issues in the administration of bail, albeit written at a time when the sole purpose of bail was to reasonably assure court appearance. Its holding included the following language:
the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the Eighth Amendment. Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.84
The case is also often cited for the following language concerning the presumption of innocence:
[f]rom the passage of the Judiciary Act of 1789, to the present Federal Rules of Criminal Procedure, Rule 46 (a)(1),85 federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.86
Finally, the case is known for language both in the majority opinion as well as Justice Jackson’s memorable concurring opinion, emphasizing the importance of individualized bail determinations that are tailored to each defendant.
the vast majority [of jurisdictions], either expressly or implicitly, understand the word ‘sureties’ in the phrase ‘sufficient sureties,’ to encompass a variety of bond forms, including cash. See State v. Briggs, supra, 666 N.W.2d at 583 (“the framers did not intend to favor one particular method of surety-commercial bonding-by inclusion of the sufficient sureties clause”); State v. Brooks, supra, 604 N.W.2d at 353 (the word “sureties” “encompasses a broad array of methods to provide adequate assurance that an accused will appear as the court requires”); see also Ex parte Singleton, supra, 902 So.2d at 135 (quoting State v. Briggs, supra, 666 N.W.2d at 581-83: “[w]e are also confident that the framers did not intend to favor one particular method of surety”); People ex rel. Gendron v. Ingram, 34 Ill.2d 623, 217 N.E.2d 803, 806 (1966) (“the alternative methods of bail provided in [the statutes] do not violate the constitutional provision that all persons shall be bailable by ‘sufficient sureties” ’); Burton v. Tomlinson, 19 Or.App. 247, 527 P.2d 123, 126 (1974) (“Nowhere does it say that lawful release of a defendant may be accomplished only through the medium of sureties.”); cf. Rendel v. Mummert, supra, 474 P.2d at 828; State ex rel. Jones v. Hendon, 66 Ohio St.3d 115, 609 N.E.2d 541, 543 (1993); but see State v. Golden, supra, 546 So.2d at 503 (limiting the “sufficient sureties” clause to commercial sureties).
Because the history of the phrase in each of the respective constitutions is similar, we are persuaded by the near uniformity of these opinions on this question. We also find particularly informative the exhaustive historical analysis done by the Iowa Supreme Court in Briggs. Specifically, that court noted that the several state constitutions that included “sufficient sureties” upon which the Iowa provision was patterned were drafted before commercial sureties even emerged as a popular bond form. Similarly, the court pointed to historical data indicating that personal, monetary, and property sureties were all more well-known ways to secure a bond when the Iowa Constitution was enacted. State v. Briggs, supra, 666 N.W.2d at 583; cf. People v. Mellor, 2 Colo. 705, (1875) (cash bond imposed by trial court).
Furthermore, in Colorado, as in most jurisdictions, the primary purpose of bail is to assure the presence of the accused at trial. See People v. Sanders, 185 Colo. 153, 156, 522 P.2d 735, 736 (1974) (such a purpose “should be met by means which impose the least possible hardship upon the accused”); see also Reynolds v. United States, 80 S.Ct. 30, 32, 4 L.Ed.2d 46 (1959). Interpreting the word ‘sureties’ broadly to encompass multiple bond forms satisfies this purpose. When bail may be secured by a court in a variety of ways, the court's ability to assure the presence of the accused at trial is strengthened. See Rendel v. Mummert, supra, 474 P.2d at 828 (“‘sufficient sureties' mean, at a minimum, that there is reasonable assurance to the court that if the accused is admitted to bail, he will return as ordered until the charge is fully determined”).
Accordingly, we agree with the majority of jurisdictions considering the issue that, in reference to bail, the term “sureties” refers to a broad range of guarantees used for the purpose of securing the appearance of the defendant. Such guarantees include, but are not limited to, bonds secured by cash.90
Historically, sureties were always people, and government officials attained sufficiency by “stacking’ sureties – that is, by using multiple persons to take collective responsibility for the defendant pretrial.
1. Bryan A. Garner, A Dictionary of Modern Legal Usage (Oxford Univ. Press, 3rd ed. 1995), at 96 [hereinafter Garner].
2. Black’s Law Dictionary (West Pub. Co., 9th ed. 2009).
3. Asimow, Popular Culture and the Adversary System, 40 Loy. L. A. L. Rev. 653 (2007).
4. Garner, supra note 1, at 96. According to Garner, as a noun, people use the term bail to mean (1) a person who acts as a surety for a debt, (2) thesecurity or guarantee agreed upon, and (3) the release on surety of a person in custody.
5. Bouvier’s Law Dictionary, 8th ed., Vol. 1, at 153 (1858).
6. 342 U.S. at 4 (internal citation omitted) (emphasis added).
7. 481 U.S. 739, 755 (1987).
8. Frequently Asked Questions About Pretrial Release Decision Making (ABA 2012).
9. Va. Code. § 19.2-119 (2013).
10. Colo. Rev. Stat. § 16-1-104 (2013).
11a. Alaska Const. art. I, § 11.
11b. Florida Const. art. I, § 14.
11c. Conn. Const. art. 1, § 8.
11d. Wis. Const. art. 1, § 8.
12. Of course, there are other ways that defendants can be released from pretrial confinement, such as through an emergency release procedure in response to a court order placing limits on a jail’s population.
13. Cohen & Reaves, Felony Defendants in Large Urban Counties, 2006, U.S. Dept. of Justice, Bur. of Justice Stats. (May 2010), at 17, found at http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf.
15. See Evie Lotze, John Clark, D. Alan Henry, & Jolanta Juszkiewicz, The Pretrial Services Reference Book, Pretrial Servs. Res. Ctr. (Dec. 1999), at 5. The Act was codified at 18 U.S.C. §§ 3141-3151.
16. 18 U.S.C. § 3142 (b).
17. Id. § 3142 (e).
18. See Id.
19. 481 U.S. 739 (1987).
20. 342 U.S. 545-46.
21. Wayne H. Thomas, Jr., Bail Reform in America (Univ. CA Press 1976) [hereinafter Thomas] at 200.
22. American Bar Association Standards for Criminal Justice (3rd ed.) Pretrial Release (2007) [hereinafter ABA Standards] Std. 10-1.3, at 41. The term “minor offenses” is used rather than “misdemeanors” because the latter term is often defined differently among jurisdictions across the United States. Generally, according to the commentary to Standard 10-1.3, “‘minor offenses’ are the equivalent to lower-level misdemeanors. However, when the alleged offense involves danger or weapons – as, for example, is often the case in domestic violence misdemeanors – the Standard allows jurisdictions to determine that the offense is not ‘minor,’ regardless of its statutory designation.” Id.
23. Id. Std. 10-2.1, at 63.
24. Id. at 63-64.
25. Id. Std. 10-2.2, at 65.
26. Id. Std. 10-2.3, at 69.
27. See Performance Standards and Goals for Pretrial Diversion/Intervention (2008) at http://www.napsa.org/publications/diversion_intervention_standards_2008.pdf.
29. Standards on Pretrial Release (3rd ed.), Nat’l Assoc. of Pretrial Servs. Agencies (Oct. 2004), Std. 1.4 (g) (commentary) at 16 [hereinafter NAPSA Standards].
30. Id. (commentary) at 19.
31. ABA Standards, supra note 22, Std. 10-1.4 (f) (commentary), at 45.
32. 481 U.S. 739, 746 (1987).
33. See, e.g. Soland, Constitutional Law – Equal Protection – Imposing Money Bail, 46 Tenn. L. Rev. 203 (1978).
34. 351 U.S. 12, 19 (1956).
35. Bandy v. United States, 81 S. Ct. 197, 198 (1960).
36. Bandy v. United States, 82 S. Ct. 11, 13 (1961).
37. 481 U.S. 739, 754 (1987).
38. Galen v. County of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (internal citations omitted).
39. 342 U.S. 1, 5 (1951).
40. See, e.g., United States v. Polouizzi, 697 F. Supp. 2d 381, 388 (E.D.N.Y 2010) (“The excess can be reflected in monetary terms or in other limitations on defendant’s freedom such as curfews, house arrests, limits on employment, or electronic monitoring.”).
41. 554 U.S. 191, 195 (2008).
42. Compare, e.g., Colo. Rev. Stat. § 16-4-112 (forfeiture procedure for compensated sureties) with Colo. Rev. Stat. § 16-4-109 (forfeiture procedure for all other bonds).
43. Garner, A Dictionary of Modern Legal Usage (Oxford Univ. Press 1987) at 263.
44. Harris v. Nelson, 394 U.S. 286 290-91 (1969).
45. Rose v. Lundy, 455 U.S. 509, 546 n. 16 (1982) (J. Stevens, dissenting) (internal quotations omitted).
46. ABA Standards, supra note 22, Std. 10-1.1.
47. 481 U.S. 739, 753 (1987).
48. See United States v. Salerno, 794 F.2d 64 (2d Cir. 1986) rev’d, 481 U.S. 739, 753 (1987).
49. Marie VanNostrand, PhD., Legal and Evidence Based-Practices: Applications of Legal Principles, Laws and Research to the Field of Pretrial Services (Nat’l Inst. Corr. and the Crime and Justice Inst., April 2007) at 12.
50. Thomas, supra note 21, at 4.
51. 342 U.S. 1 (1951).
52. See Clark v. Hall, 53 P.3d 416 (2002); Pelekai v. White, 861 P.2d 1205 (1993); Demmith v. Wisc. Jud. Conf., 480 N.W. 2d. 502 (Wisc. 1992).
53. NAPSA Standards, supra note 29.
54. National Conference on Bail and Criminal Justice, Proceedings and Interim Report (Washington, D.C. Apr. 1965), at XIV.
55. Id. at 296.
56. Corley v. United States, 129 S. Ct. 1558, 1570 (2009) (internal citations and quotations omitted).
57. See In Re Winship, 397 U.S. 358, 362-64 (1970) (“The [reasonable doubt] standard provides concrete substance for the presumption of innocence – that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.”).
58. 156 U.S. 432, 460, 453 (1895).
59. 441 U.S. 520, 533 (1979).
60. Id. at 533-34.
61. 342 U.S. 1, 4 (1951).
62. 481 U.S. 739, 762-63 (1987).
63. See Transcript: Justice Matters – Interview with Tim Murray Regarding Pre-Trial Justice and the Crucial Role Reentry Programs Play in the Justice System, at http://www.pretrial.org/Docs/Documents/Transcripts_Justice_Matters_508.pdf.
64. Marie VanNostrand, Pretrial Justice – Afforded to Few, Denied to Many, at http://www.luminosity-solutions.com/publications/PretrialJusticeAffordedtoFewDeniedtoMany.pdf.
65. ABA Standards, supra note 22, Std. 10-1.1, at 36.
66. 481 U.S. 739 (1987).
67. Id. at 755.
68. See e.g., Marie VanNostrand, Alternatives to Pretrial Detention: Southern District of Iowa – A Case Study (June 2010) (in which that district undertook system improvements to use “alternatives to detention when appropriate to increase pretrial release rates while assuring court appearance and public safety”).
69. Beck v. Ohio, 379 U.S. 89, 91 (1964).
70. NAPSA Standards, supra note 29, Std. 2.2 (d), at 27.
71. Id. Std. 2.2 (d) (commentary), at 30 (footnote omitted).
72. ABA Standards, supra note 22, Std. 10-4.3 (c), at 92.
73. Id. (commentary), at 96 (footnotes omitted).
74. See Douglas L. Colbert, Ray Paternoster, and Shawn Bushway, Do Attorneys Really Matter? The Empirical and Legal Case for the Right to Counsel at Bail, 32 Cardozo L. Rev. 1719 (2002). It is noted that, at the time of the study, the court used the services of a neutral pretrial services representative, who made a recommendation regarding a bail bond.
75. Id. at 1783.
76. 342 U.S. 1, 4 (internal citation omitted) (emphasis added).
77. Id. at 7-8 (concurring opinion).
78. 481 U.S. 739, 755 (1987).
79. Rothgery v. Gillespie County, 554 U.S. 191, 198 (2008) (internal quotation omitted).
81. Id. at 213.
82. 481 U.S. at 754-55.
83. Id. at 755.
84. 342 U.S. at 5 (internal citation omitted).
85. In addition to granting a right to bail, at the time of the decision Rule 46 also required the bail bond to be set to “insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant.” 342 U.S. at 6 n. 3.
86. 342 U.S. at 4 (internal citations omitted).
87. See Marcus, The Making of the ABA Criminal Justice Standards, 23 Crim. Just. No. 4 (Winter 2009).
88. June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517 (1983) at 531 (quoting 5 American Charters 3061, F. Thorpe ed. 1909) (footnotes omitted).
89. Id. at 532.
90. Fullerton v. County Court, 124 P.3d 866, 870 (Colo. App. 2005).