Bail in the U.S.A. How does it work?

Bail in the U.S.A. How does it work?

For those who are not familiar with the “legalese”, one of the primary sources of approaching the U.S. legal world (and in general, the U.S. cultural world) is the Hollywood industry and its products. Indeed, we have seen plenty of times this shady figure: the bail bondsman. And we have heard\seen many times the villain\suspicious being bailed out of jail, i.e. someone pays to get him\her out of jail. But how does it work?

First of all, what is a bail?

Bail is cash, a bond, or property that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest (the act of jumping bail is either a misdemeanor or a felony, depending upon statute).

Who sets the bail?

Judges are responsible for setting bail.

The idea of setting a bail overlaps with the concept of pre-trial detention. At this point we need some juridical background: in many western style democracies, imprisonment without\before trial is considered to be in contradiction to the idea that a suspect is innocent until proven guilty, and for this reason pre-trial detention is usually subject to safeguards and restrictions as to its permissible duration. It is the so called “presumption of innocence”, a cornerstone of our legal systems. This means that, after being charged, a person must appear in court to defend himself\herself form the accusations in front of a unbiased judge\jury. Only at the end of the trial, if found guilty, he\she will be deprived of his\her freedom (if so requires the law). But setting up a trial requires time. So, in order to grant a rightful administration of justice, the system makes some exceptions to the principle shown above.

In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined (in U.S. facing a judge is matter of one or two days, unlike in Italy). However, the court has the option of releasing the individual before that determination is made, and this option is called bail. Bail is set by the judge during the defendant's first appearance. For many misdemeanors, bail need not be set. For example, the defendant may be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.

A defendant can also be released upon her or his own recognizance, which is the defendant's written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognizance constitutes a crime.

How much?

The bail is set at an amount that is large enough to convince the accused to return to the court. In general, it can be influenced by some key factors like:

- seriousness of the crime;

• accused's criminal record;
• likelihood the accused will leave or flee to escape the trial;
• accused financial resources

Legal framework

The first and higher legal reference is the Constitution itself: the Eight Amendment bars excessive bails and fines (link).

At a Federal level the main reference is the United States Code, Title 18, Section 3141-3150 (Title 18).The main innovation of this law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight (see next paragraph).

On the other hand, states may have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule (California ; Illinois). These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.

Recently some states have enacted statutes modeled on federal law that permit pre-trial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.

Pre-trial detention

As mentioned above, pre-trial detention is the exception and is generally subject to restrictions.

Anyway, the accused maybe held in jail without bail if :

• the judge thinks he\she is danger to the community;
• he\she might avoid trial;
• he\she is charged with a crime punishable with life imprisonment or death;
• he\she is charged with a serious or violent crime;
• he\she is charged with certain drug-related crimes and faces more than then years if found guilty;
• there's a reason to believe he\she will obstruct the justice or tamper with witness;

As a practical matter, a judge may also set an extraordinarily high bail – one most people can't afford - as a way of keeping someone in jail until it's time for trial.

The Bail Bondsman

We have seen the theory behind the bail system: the objective of bail in criminal actions is to prevent the imprisonment of the accused prior to trial while ensuring her or his appearance at trial.

But what if the accused cannot afford the money? People often turn to a bail bondsman.

A bail bond is a contract between three parties:

1. The surety = the bail bondsman;
2. The obligee = the court;
3. The principal = the accused

With a bail bond, the bondsman promises to pay the full bail amount to the court if the accused doesn't live up to the terms of release, like show up in court for a hearing or the trial. In exchange for his service, the bondsman usually charges a non-refundable fee of about 10 %.

Few states, such as Illinois, Kentucky, Oregon and Wisconsin, have completely banned commercial bail bonding. In these states, the accused is allowed to pay 10% of the bail directly to the court. This bond, called surety on the bond, is refunded if the accused appears in court.

A comparative perspective

The bail system is totally absent in the Italian procedure. The necessity of making coexist the prevention of imprisonment without\before trial (presumption of innocence is a cornerstone in Italy too) and the guarantee that the accused will appear in trail is reached through a series of precautionary measures specifically defined by the criminal procedure code.

During the investigations, the judge may limit the personal freedom of the accused if the particular case matches two classes of requirements set by articles 273 and 274 of the codice di procedura penale:

• strong clues\evidence of culpability (high probability that the accused is guilty, based on the evidence so far collected) ;
• precautionary measures needed (high risk of fleeing, contamination of the evidence, reiteration of the crime)

If both of the two requirements exist, the judge may apply the more suitable measure, being the imprisonment the utmost and most serious one.

Next time you will see someone being bailed out in a movie, you will know what it means!