By Wendy Shang
The idea that bail in the form of money bond is an ancient practice has been bubbling up lately, with the implication that we cannot tamper with a practice so firmly ensconced in our legal tradition. While the importance of liberty before trial is part of our legal heritage and values, the differences between how bail was practiced in the past and the practice we have now are worth noting.
Without getting too deeply into British legal history (look up wergeld and frankpledge if you have a hankering for more knowledge, or read Tim Schnacke’s excellent “Model” Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention), we can say this: While bail has in many circles become synonymous with money, history shows that the imperative legacy of bail is its function as a means of release. The dominant form of release in early English history was essentially a personal surety system, where a person—the surety—agreed to take responsibility over defendants. The surety in this case was not allowed to profit from this arrangement, nor was the surety even allowed to accept a promise of reimbursement in the event that the accused defaulted on the payment—i.e., indemnification.
When someone says that money bail is a fundamental right and is as old as the republic, then, they are trying to glide past some critical details. The form of bail in virtually all criminal cases during Colonial times was a combination of personal sureties and recognizance, meaning that there was no up-front requirement to pay, and sureties had to show their ability to pay the amount set if defendant failed to return to trial.
Putting to one side the question of whether for-profit bonding is desirable, release on recognizance plus the prohibition on profit and indemnification for sureties meant that there were no up-front fees that would keep a defendant from being released. Up-front costs in our current system in the form of bond premiums and collateral requirements have meant that people who are likely to return to court with no offending are instead kept behind bars. In some cases, the consequences are even more dire: in 2014, more than 1,000 people died in jail, many of whom remained unconvicted of their charges at the time of death.
Another important thread in the history of bail is the development of the bail/no-bail dichotomy. During the early legal history of England, the distinction between bailable and un-bailable offenses was developed, where bailable meant the right to release. In 1166, King Henry established a list of felonies that were considered un-bailable. In 1275, Parliament enacted the Statute of Westminster, which warned sheriffs that to deny the release of bailable defendants or to release un-bailable defendants was against the law. In 1689, when justices began setting financial conditions in amounts so high that they led to the detention of bailable defendants, the English Bill of Rights declared that “excessive bail ought not be required.” Proponents of for-profit bail have tried to twist the prohibition against excessive bail into a right to bail—but not to affordable bail—in all cases, but history shows differently. The prohibition on excessive bail does not establish a right to bail in all cases, only those cases that are bailable in the first place. Moreover, historically, the detention of bailable individuals for any reason, including the lack of money, has always led to reform.
When someone tries to make commercial, for-profit bonding sound like a long-standing tradition, it helps to know the details of history and how deviating from that history implicates our current conditions, policies, and values. We also need to look to the future, using the legal and evidence-based tools available to us, to make the best and most just decisions we can at this critical stage of the legal process.