Evolution of Bail

When the New World was in its infancy, crime was on the rise. In an effort to take control of the uncontrollable it was simpler to adapt the English criminal system rather than invent a new criminal system. Taking its queue from the British, over time America was able to create a criminal system that works to provide an affordable means of release from jail and a greater success of criminals playing by the rules.

In medieval England, it was discovered that people accused of crimes would do whatever they could to avoid facing the court and the possible punishment for their crimes. In those days, the punishment was water torture and burning at the stake, so you can’t blame then for being ‘no shows’.

Local sheriffs had a great deal of difficulty keeping criminals locked up until trial because there was no magistrate judg in the local town and it could be a month or so before a judge would hold court, so there wasn’t any room to hold vandals, traitors and poachers. However, holding water torture over their heads seemed to be a good way to assure that anyone released from the overcrowded jails would show up for trial.

The decision of who to release was primarily made by the local sheriff, who was granted a great deal of authority by the king. The sheriff had the power to decide the fate of any and all criminals, based in the severity of the crime. This loosely structured ‘justice system’ had a tendency to be exploited for personal gain and proved to be less than perfect.

In 1275, Parliament passed the Statute of Westminster to remove some of the temptation from sheriffs. The statute specifically listed which crimes were bailable offenses and which were not. Once this was enforced, there were no changes made to the system for hundreds of years.

While there were further issues posed in relation to the right to bail and a trial, the most valuable law to date, after almost 200 years, was instituted by the U.S. Congress in the form of the Bail Reform Act of 1966. It stated that a defendant facing trial for a non-capital offense should be released “on his personal recognizance” or on personal bond. However, if the court had reason to believe the defendant would skip town, the judge could choose a more restrictive alternative like limiting the defendant’s travel and executing an ‘appearance bond’ that would be refunded when the defendant appeared in court.

Individual states might have had their own rules, but some states added guidelines similar to the Bail Reform Act of 1966. Then the District of Columbia pointed out flaws in the act like; the defendant’s potential risk to the community for non-capital offenses. This became an issue when defendants released for non-capital offenses were committing more crimes while out on bail. So a revision was made – The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider the dangerousness to the community as well as risk of flight when setting bail for non-capital cases.

Finally, the federal justice system joined in by adding the ‘safety of the community’ as a factor to be considered when imposing bail and thus the Bail Reform Act of 1984 was passed. This newer version added guidelines stating that a person can be detained without bail if he:

1) Poses a risk to the community.

2) May intimidate jurors or witnesses, or otherwise obstruct justice while out on bail.

3) Commits a violent or drug-related crime, an offense carrying a penalty of death or life in prison, or committing any felony while already having a serious criminal record.