For a system that is, in theory, concerned only with determining people’s guilt or innocence, that’s important. Otherwise, it would be a system that hurts poor and marginalized people before saying whether they’re guilty or not.
Innocence isn’t just a verdict
The basic assumption is that the defendant is innocent until proven guilty. However, by detaining the defendant before the trial, this principle loses its power. In fact, the person who is detained has a high chance of losing their job and accommodation, breaking the social ties with their family, and losing the opportunities to assist in their defense, among other things.
In the age when proper evidence is crucial for the court decisions, it is essential to remember that only a person released on bail has the time and freedom to seek and prepare the needed evidence. Consequently, the quality of the defense and the court decisions may significantly drop.
What judges are actually weighing
During an arraignment a bail amount is set by a judge based on these two factors: A defendant’s right to be free from government custody. The government’s interest to protect the safety of the public. Flight risk and the severity of the charges are also important considerations. Most places utilize a bail schedule as the base – an itemized list associated with specific crimes – before the judge makes decisions based upon the details of the individual case.
It is up to a judge to decide if the government’s need to detain someone outweighs the cost of housing them in jail before the trial occurs. And bail serves as that device. It is not meant to allow a defendant to walk out the door without consequences. It is, factually, a surety bond that promises the defendant will attend all court appearances. The bond is what guarantees the court can release the individual and yet still stay accountable.
The practical difference in how defendants are perceived
There is an element to this that is often talked about but isn’t discussed enough. A defendant who walks into the courtroom in his or her own clothes, in control, and unshackled, is perceived differently than a defendant who is brought in wearing a jail jumpsuit and in shackles. Juries are specifically told not to draw inferences from a defendant being in custody, but juries are made up of human beings. How a person presents in the courtroom shapes those critical initial perceptions, and first impressions are hard to erase.
We don’t have to take anybody’s word for it. It’s a reason, perhaps the primary reason, that defense attorneys expend so much energy trying to get their clients out of custody before their trial. It seeps into everything from jury perception, to access to the defendant during what is likely the most stressful experience of that person’s life, to the defendant’s ability to stay composed over the duration of what is probably going to be a lengthy trial.
Financial access and the role of bondsmen
One valid issue with the bail system is that high bail amounts can make pretrial release effectively out of reach for someone who doesn’t have substantial savings. The difference is where bail bondsmen step in. For approximately ten percent of the entire bail, a bail agent pays the full amount on behalf of the defendant. The defendant doesn’t have to sell assets or wipe out their family’s money to use the rights already granted to them by the system.
For instance, Mr Nice Guy Bail Bonds provides an opportunity to get out of custody without needing the entire amount in cash up front, thus ensuring that due process isn’t limited to those with money currently held in the bank.
The private surety system further comes with an oversight structure. Bail agents have cash on the line when it comes to their clients showing up in court, so they follow up, provide alerts, and stay in touch that the court system is not able to manage.
Preventing the cascade toward a bad outcome
If we bail people out tonight, they are back at work in the morning. They’re taking their kids to school, meeting their obligations, and making amends right away. The push to accept an afternoon plea offer doesn’t cause a defendant to lose his job, his lodging, and his partner. Hopefully, we would never knowingly detain an innocent person, but the system has foisted this choice on far too many.
The system depends on this working
Bail is not some kind of detail. It is a fundamental component of the right to a fair trial. If eliminated, detention would cease being a punishment after sentence and instead become a tool of pressure before judgment. The bail bond system serves the purpose of both making freedom before trial possible and offering some guarantees that the accused will show up for trial. This is crucial for the defendants and for the value of the sentence “innocent”.