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.1 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.”2 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”)3 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.”).4
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.”5 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”),6 and Colorado (which defines bail as security like a pledge or a promise, which can include release without money),7 have enacted statutory definitions to recognize bail as something more than simply money. Moreover, some states, such as Alaska,8 Florida,9 Connecticut,10 and Wisconsin,11 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.
1. 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.
2. Bouvier’s Law Dictionary, 8th ed., Vol. 1, at 153 (1858).
3. 342 U.S. at 4 (internal citation omitted) (emphasis added).
4. 481 U.S. 739, 755 (1987).
5. Frequently Asked Questions About Pretrial Release Decision Making (ABA 2012).
6. Va. Code. § 19.2-119 (2013).
7. Colo. Rev. Stat. § 16-1-104 (2013).
8. Alaska Const. art. I, § 11.
9. Florida Const. art. I, § 14.
10. Conn. Const. art. 1, § 8.
11. Wis. Const. art. 1, § 8.