If you watch much television, you’ve probably seen variations of this scene dozens of times: a judge bangs a gavel and announces, “Bail is set at $100,000.” The defendant looks despondent as he consults with his lawyers. But somehow he ends up free while waiting for his trial to begin. One hundred thousand dollars is a lot of money to come up with -- how did he afford it? And what did it mean when the defense attorney claimed his client was not a “flight risk”?
Bail works by releasing a defendant in exchange for money that the court holds until all proceedings and trials surrounding the accused person are complete. The court hopes that the defendant will show up for his or her court dates in order to recover the bail.
The Bail Process
When someone is arrested, he or she is first taken to a police station to be booked. When a suspect is booked, or processed, a police officer records information about the suspect (name, address, birthday, appearance) and the alleged crime. The police officer conducts a criminal background check, takes the suspect’s fingerprints and mugshot and seizes and inventories any personal property, which will be returned when the suspect is released. The suspect is also checked to see if he or she is intoxicated and usually is allowed to make a phone call. Finally, an officer puts the suspect in a jail cell, usually with other recently booked suspects.
For less serious crimes, a suspect may be allowed to post bail immediately after being booked. Otherwise, the suspect will have to wait (usually less than 48 hours) for a bail hearing where a judge will determine if the accused is eligible for bail and at what cost.
Types of bail
There are five different types of bail, although some of them are used less frequently than others. Let’s start with the most common ones.
Cash bail means that the accused pays the full amount of bail in cash. Sometimes the court accepts checks or even a credit card.
History of Bail
The United States’ bail system has evolved from a system developed in England during the Middle Ages. In 1677, the English parliament passed the Habeas Corpus Act, which, among its provisions, established that magistrates would set terms for bail. The English Bill of Rights of 1689 declared restrictions against “excessive bail” and later inspired the Virginia state constitution and the Eighth Amendment to the United States Constitution. The Sixth Amendment to the Constitution states that all people under arrest must “be informed of the nature and cause of the accusation” they face and also allows a person to demand bail if he or she is accused of a bailable offense.
Still, American bail law is actually rooted in legislation. The Judiciary Act of 1789 stated that all non-capital offenses (crimes that did not carry the possibility of the death penalty) were bailable. In the case of capital crimes, the possibility of bail was at the judge’s discretion. The act also placed limits on judges’ powers in setting bail -- think back to the English Bill of Rights’ prohibition against “excessive bail.”