Chapter Eleven: Bail

The right to bail is established in the Eighth Amendment’s clause of the U.S. Constitution which states that, “excessive bail shall not be required.” However, those defendants accused of a capital offense have no right to bail.

Questions: What is “excessive” bail? What should the purpose of bail be? When does bail setting occur?

Bail is a guarantee that upon release from jail, the accused promises to return to court as needed. Forms of bail include: Cash Bond Property Bond Release on Recognizance Bail Bondsman Bail

Bail and Inequities versus Bail and Crime

Conflicting Theories Crime Control The purpose of bail is to protect society; i.e., pretrial crimes and preventive detention. Due Process The purpose of bail is to ensure pretrial release and the guarantee that the defendant appears in court, i.e., 10 percent bail and pre-trial services.

Preventive Detention Preventive detention allows judges to hold suspects without bail if they are accused of committing a dangerous or violent crime and locking them up if deemed necessary for public safety.

Conflicting Federal Laws Crime Control Bail Reform Act of 1984 “danger to the community Due Process Bail Reform Act of 1966 “pre-trial release”

Bail Reform Act of 1984 Federal defendants – accused of serious crimes. No bail up to 90 days if convincing evidence that the defendant will: 1) risk of flight; 2) obstruct justice or cause harm to either the witness or juror; and, 3) the offense is one of violence or punishable by life imprisonment or death. Also: there is a presumption against pretrial release for major drug dealers. Preventive detention is not a punishment, but a means to curtail pretrial crime and maintain public safety.

Bail and Pretrial Release

Growth in U.S. Jail Population

Question What was the importance of the Supreme Court case U.S. v. Salerno (1987)?

Key Developments Regarding Bail

Factors That Affect Judicial Discretion and Bail Setting Judges have unlimited legal discretion in setting bail. Based on limited information about the defendant and the evidence, the judge faces uncertainty in setting bail. Judges face the risk of Type I errors and Type II errors. Judges must consider jail resources – in the U.S., 750,000 people are in jail on any given day, half of whom are not convicted of any crime.

Question What are the pros and cons of pre-trial drug testing at the arrest stage?

Shaping Bail Guidelines Two Most Important Legal Factors: Seriousness of the Crime and Prior Criminal Record

Question: What is situational justice? Should individual facets be considered? Should demeanor be considered?

Questions How common are pretrial crimes? How effective are pretrial service programs? What is meant when preventive detention is referred to as having a “symbolic status?”