The American Bail System and Commercial Bond Industry

 The American Bail system and commercial bond industry is flawed and it is time for federal reform.  The fact that 2 people accused of the same crime are treated differently prior to trial and that one person is jailed and the other is let go, simply because they have more money is unconstitutional.  A lot of people would argue the person with more resources would be a higher risk to the community so it doesn’t make any sense to let one person go free until trial while caging another person suspected of committing the same crime.  This is also troubling because we are jailing defendants presumably innocent until proven guilty.  Being jailed because a person cannot afford bail is essentially being punished before being found guilty.  

I spoke with Randy Burchfield, a defense lawyer in Ohio.  I asked him what happens when someone is brought to court after being arrested for a crime.  I then proceeded to asked him what the is basis on which the amount of bail is decided and whether there is even bail placed at all.  He told me in all fifty states after someone is arrested, they are brought to jail and most circumstances they are told they are eligible for release immediately but they have to give the government some money first.  Some places bail is dependent on a chart that is based purely on the offense that person is being charged with and other places go before some officer, magistrate, or judge, who would pick an amount of money, many times without any inquiry at all whether the person can afford that amount of money.  In D.C. or any federal court in the United States however, people are released prior to trial without bail unless the government can prove that they are dangerous to the community or risk of flight.  

So in D.C., a person being locked up is based on evidence and danger rather than a persons poverty level.  In all of the other states, whether you stay in jail prior to trial after you are arrested by the police rest solely on whether you can pay bail.

Bail is meant to make sure that a defendant shows up for trial and the word has deep ancestral roots in English common law.  It relied on sworn promises of land or property from the defendants or their relatives to make sure they did not flee.  By the 1800s, American private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would find and return the defendants if they failed to appear for court/trial.

A bondsman is someone who people go to when they are accused of a crime and have a bail set, cannot afford to pay it, and cannot afford to sit in jail either.  The Bail bondsman will charge the client a percent of the bail and cover the rest amount of the bail, but the client is expected to pay the bail bondsmen a certain amount over time for covering the bail therefore releasing you.  The client is freed to go until trial, and then they have to pay the bail bondsman off with interest included afterwards.  Essentially a defendant is paying a nonrefundable fee for their freedom even though they are presumed innocent because they cannot afford bail.