Forms of bail
The form of bail varies from jurisdiction, but the common forms of bail
Recognizance — a
promise made by the accused to the court that he/she will attend all
required judicial proceedings and will not engage in further illegal
activity or other prohibited conduct as set by the court. Typically a
monetary amount is set by the court, but is not paid by the defendant
unless it is forfeited by the court; this is denominated an unsecured
Surety — when a third
party agrees to be responsible for the debt or obligation of the
defendant. In many jurisdictions this service is provided commercially by
a bail bondsman, where the agent will receive 10% of the bail amount up
front and will keep that amount whether the defendant appears in court or
not. The court in many jurisdictions, especially jurisdictions that
prohibit bail bondsmen, may demand a certain amount of the total bail
(typically 10%) be given to the court, which, unlike with bail bondsmen,
is returned if the defendant does not violate the conditions of bail.
Release on Conditions
- many varied non-monetary conditions and restrictions on liberty can be
imposed by a court to ensure that a person released into the community
will appear in court and not commit any more crimes. Common examples
include: mandatory calls to the police, surrendering passports, home
detention, electronic monitoring, drug testing, alcohol counseling,
Orders of Protection -
one very common feature of any conditional release, whether on bail, bond
or condition, is a court order requiring the defendant to refrain from
criminal activity against the alleged crime victim, or stay away from and
have no contact with the alleged crime victim. The former is a limited
order, the latter a full order. Violation of the order can subject
the defendant to automatic forfeiture of bail and further fine or
Cash — typically
"cash only", where the defendant must provide the amount of the
bail to the court.
Combinations* - courts
often allow defendants to post cash bail or bond, and then impose further
conditions, as mentioned above, in order to protect the community or
Bail may be forfeited, and the defendant remanded to jail, for failure to
appear when required.
In the UK
there are three types of bail: 1. Police Bail where a suspect is released without being charged but
must return to the police station at a given time .
2.Police to Court where having been charged a suspect is given bail
but must attend his first court hearing at the time and Court given
3.Court bail where having already been in court a suspect is granted
bail pending further investigation or while the case continues .
Bail law in England and Wales
In medieval England,
the sheriffs originally possessed sovereign authority to release or hold suspected
criminals. Some sheriffs would exploit the bail for their own gain. The Statute
of Westminster (1275) limited the discretion of sheriffs with respect to the
bail. Although sheriffs still had the authority to fix the amount of bail
required, the statute stipulates which crimes are bail able and which ones are
In the early 17th century, King Charles I ordered noblemen to issue him loans.
Those who refused were imprisoned. Five of the prisoners filed a habeas corpus petition
arguing that they should not be held indefinitely without trial or bail. In the
Petition of Right (1628) the Parliament argued that the King had flouted the Magna
Carta by imprisoning people without just cause.
The Habeas Corpus Act (1679) states, "A Magistrate shall discharge prisoners
from their Imprisonment taking their Recognizance, with one or more Surety or
Sureties, in any Sum according to the Magistrate's discretion, unless it shall
appear that the Party is committed for such Matter or offenses for which by law
the Prisoner is not bailable."
The English Bill of Rights (1689) states that "excessive bail hath been
required of persons committed in criminal cases, to elude the benefit of the
laws made for the liberty of the subjects. Excessive bail ought not to be
required." This was a precursor of the Eighth Amendment to the US
Under current law, a defendant has the right to bail unless there is
sufficient reason not to grant it. The main reasons for refusing bail according
to the Bail Act 1976 are that there are substantial grounds for believing that
the defendant (1) will abscond; (2) will commit further offences whilst on
bail; or (3) will interfere with witnesses. Conditions may be applied to the
grant of bail, such as living at a particular address or, rarely, paying an
amount into court or having someone act as surety. Release on bail is sometimes
referred to as police bail, where the release was by the police rather than by
a court. The alternative to being granted bail is being remanded into custody
(also called being held on remand).
Bail law in the United States
In pre-independence America,
bail law was based on English law. Some of the colonies simply guaranteed their
subjects the protections of British law. In 1776, after the Declaration of
Independence, those which had not already done so, enacted their own versions
of bail law.
Section 9 of Virginia's
1776 Constitution states "excessive bail ought not to be required..."
In 1785, the following was added, "Those shall be let to bail who are
apprehended for any crime not punishable in life or limb...But if a crime be
punishable by life or limb, or if it be manslaughter and there be good cause to
believe the party guilty thereof, he shall not be admitted to bail."
Section 29 of the Pennsylvania Constitution of 1776 states "Excessive
bail shall not be exacted for bailable offenses".
The Eighth Amendment in the US Federal Bill of Rights is derived from the
Virginia Constitution, "Excessive bail shall not be required...", in
regard to which Samuel Livermore commented, "The clause seems to have no
meaning to it, I do not think it necessary. What is meant by the term excessive
bail...?!" The Supreme Court has never decided whether the constitutional
prohibition on excessive bail applies to the States through the Fourteenth
The Sixth Amendment, to the Constitution, like the English Habeas Corpus Act
of 1678, requires that a suspect must "be informed of the nature and cause
of the accusation" and thus enabling a suspect to demand bail if accused
of a bail able offence.
The Judiciary Act of 1789
In 1789, the same year that the Bill of Rights was introduced, Congress
passed the Judiciary Act of 1789. This specified which types of crimes were bail
able and set bounds on a judge's discretion in setting bail. The Act states
that all non-capital crimes are bailable and that in capital cases the decision
to detain a suspect, prior to trial, was to be left to the judge.
The Judiciary Act states, "Upon all arrests in criminal cases, bail
shall be admitted, except where punishment may be by death, in which cases it
shall not be admitted but by the supreme or a circuit court, or by a justice of
the supreme court, or a judge of a district court, who shall exercise their
The Bail Reform Act of 1966
In 1966, Congress enacted the Bail Reform Act of 1966 which states that a
non-capital defendant is to be released, pending trial, on his personal
recognizance or on personal bond, unless the judicial officer determines that
such incentives will not adequately assure his appearance at trial. In that
case, the judge must select an alternative from a list of conditions, such as
restrictions on travel. Individuals charged with a capital crime, or who have
been convicted and are awaiting sentencing or appeal, are to be released unless
the judicial officer has reason to believe that no conditions will reasonably
assure that the person will not flee or pose a danger. In non-capital cases,
the Act does not permit a judge to consider a suspect's danger to the
community, only in capital cases or after conviction is the judge authorized to
The 1966 Act was particularly criticized within the District of Columbia, where all crimes
formerly fell under Federal bail law. In a number of instances, persons accused
of violent crimes committed additional crimes when released on their personal
recognizance. These individuals were often released yet again.
The Judicial Council committee recommended that, even in non-capital cases,
a person's dangerousness should be considered in determining conditions for
release. The District of Columbia Court Reform and Criminal Procedure Act of
1970 allowed judges to consider dangerousness and risk of flight when setting
bail in noncapital cases.
Current U.S. bail law
In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law,
codified at United States Code, Title 18, Sections 3141-3150. The main
innovation of the new 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.
18 USC 3142(f) provides that only persons who fit into certain categories
are subject to detention without bail: persons charged with a crime of
violence, an offense for which the maximum sentence is life imprisonment or
death, certain drug offenses for which the maximum offense is greater than 10
years, repeat felony offenders, or if the defendant poses a serious risk of
flight, obstruction of justice, or witness tampering. There is a special
hearing held to determine whether the defendant fits within these categories;
anyone not within them must be admitted to bail.
State bail laws
Bail laws vary somewhat from state to state, as is typical of U.S.
jurisprudence. Generally, a person charged with a non-capital crime is
presumptively entitled to be granted bail. Recently, some states have enacted
statutes modeled on federal law which permit pretrial 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.
A bail bondsman is any person or corporation which will act as a surety
and pledge money or property as bail for the appearance of a criminal defendant
in court. Although banks, insurance companies and other similar institutions
are usually the sureties on other types of contracts, for example, to bond a
contractor who is under a contractual obligation to pay for the completion of a
construction project, such entities are reluctant to put their depositors' or
policyholders' funds at the kind of risk involved in posting a bail bond.
bondsmen, on the other hand, are usually in the business to cater exclusively
to criminal defendants, often securing their customers' release in just a few
Bail bondsmen are almost exclusively found in the United States, as in most other
countries bail is usually more modest, and the practice of bounty hunting is
Bondsmen usually have a standing security agreement with local court
officials, in which they agree to post an irrevocable "blanket" bond,
which will pay the court if any defendant for whom the bondsman is responsible
does not appear. The bondsman usually has an arrangement with a bank or another
credit provider to draw on such security, even during hours when the bank is
not operating. This eliminates the need for the bondsman to deposit cash or
property with the court every time a new defendant is bailed out.
Bondsmen generally charge a fee of 10% of the total amount of the bail
required in order to post a bond for the amount. This fee is not refundable and
represents the bondsman's compensation for his or her services. As the practice
of paying a 10% cash premium for a bond became widespread, some courts have
recently instituted a practice of accepting 10% of the bond amount in cash, for
example, by requiring a $10,000 bond or $1,000 in cash. In jurisdictions where
the 10% cash alternative is available, the deposit is usually returned if the
case is concluded without violation of the conditions of bail. This has the
effect of giving the defendant or persons giving security for the defendant a substantial
incentive to make the cash deposit rather than using a bail bondsman.
For large bail amounts, bondsmen can generally obtain security against the
assets of the defendant or persons willing to assist the defendant. For
example, for a $100,000 bond for a person who owns a home, the bondsman would
charge $10,000 and take a mortgage against the house for the full penal sum of
If the defendant fails to appear in court, the bondsman is allowed by law
and/or contractual arrangement to bring the defendant to the jurisdiction of
the court in order to recover the money paid out under the bond, usually
through the use of a bounty hunter. The bondsman is also allowed to sue the
defendant for any money forfeited to the court should the defendant fail to
In most jurisdictions, bondsmen have to be licensed to carry on business
within the state. Several unusual organizations often provide bail bonds. For
example, AAA (formerly the American Automobile Association) offers a bail bond
service to its members who are jailed for ordinary traffic offenses to prevent
law enforcement officials from threatening lengthy remand periods before trial
if the alleged offender does not plead guilty at arraignment.
Four states—Illinois, Kentucky,
Oregon, and Wisconsin—have completely banned commercial
bail bonding, usually substituting the 10% cash deposit alternative described
above. However, some of these states specifically allow AAA and similar
organizations to continue providing bail bond services pursuant to insurance
contracts or membership agreements.