History of Bail

The bail bonds process is an important part of the American legal process and part of your inalienable and inherent Constitutional right under the 2nd, 5th, and 14th amendments to our United States Constitution regarding release from confinement regarding bail.

It allows individuals to live their lives until they are brought to trial, giving individuals a taste of freedom while they prepare their defense. Bail itself has a very interesting history – and how it has been applied often says quite a bit about the relationship between the legal system and those who have been accused of a crime. Bail’s origins are ancient, but the concept itself has been familiar throughout history.

The Beginning of Bail

 

It is thought that the concept began roughly some 2,000 years ago under the Roman emperors to deal with the detained overcrowding. They accepted either money or property as collateral. 

Historically, there has always been a relationship between money and the ability to stay out of jail. While one can take a close look at a number of ancient civilizations that allowed accused criminals to pay their way out of a crime, it’s perhaps best to look at bail’s origins in England as the beginning of the modern process.

The earliest examples of bail date to the late 13th century, when sheriffs had the right to either hold a criminal or let the criminal go. Sheriffs would, as one might suspect, often allow a potential criminal to make a payment in order to go free. Eventually, this would evolve into a formal system – by 1275, there were certain crimes that could receive bail and certain crimes that could not.

The 1677-1789: A New Right

The 17th century formalized bail in a number of ways. As part of the Habeas Corpus Act in Britain, bail was formalized – no longer would it be set by law enforcement, but rather by magistrates. This began the process of standardizing bail amounts, something that would continue to grow in importance as time went on. In 1689, the passage of the English Bill of Rights would go on to limit excessive bail – something that would catch the attention of the American colonies.

The right to bail – and the freedom from excessive bail – would find its way into first the Virginia Constitution and then the 8th Amendment of the US Constitution. The right was important enough that the 6th Amendment guaranteed an individual the right to demand bail if he or she was accused of a bailable offense. By 1789, all non-capital offenses would be eligible for bail.

1789-1984: Bail Expands

The passage of the Judiciary Act of 1789 would be the last major change to how bail worked in the United States for almost two hundred years. While there would certainly be state laws that impacted individual states, nothing changed on the federal level. It wouldn’t be until 1966 and the Bail Reform Act that things really saw a major shift.

The Bail Reform Act expanded what it meant for bail to be reasonable. The core of the act concerned making sure that defendants could go out on bail with as little financial burden as possible. The bail system was thought to be biased against the poor and far too many people had been unable to make bail before their charges were dropped. The expansion of bail made it easier for defendants to stay free until their trial date.

1984-Present: Modern Day Bail

The modern bail system came into existence after a new law – the  Bail Reform Act of 1984. This law replaced the 1966 act, mostly due to concerns that too many violent criminals were able to receive bail for their crimes. This law changed bail in three fundamental ways. First and foremost, it allowed the court to deny bail to those who posed a danger to the community. Second, it created more categories of individuals who would not be eligible for bail, including potential flight risks and repeat offenders. Finally, the Act established the necessity of bail hearings for any person who might be eligible for bail.

The bail system in the United States has a storied history. From the Middle Ages in Britain to the halls of Congress, the laws have continued to evolve over the course of history. As public opinion changes and the relationship between the public and crime evolves, it’s certain that new laws will go into effect. One thing is for sure, though – the bail bonds industry will remain inextricably connected to the legal system.

Excerpt from All-Pro Bail, California