Bail underscores a basic tenant of the American justice system: innocent until proven guilty. Bail is mentioned in the Bill of Rights in the United States Constitution, but bail bonds do more than protect an individual's rights. The benefits of the bail bond system ripple throughout the courts, criminal justice system, and the entire community.  Without bail bonds, our jails would be even more overcrowded, the cost of housing inmates would rise, and the lives of defendants and their families would be disrupted.

History of Bail Bonds in the United States

Bail laws in the United States are based on English Common Law.  A number of English laws governed the bail process, beginning with the Statute of Westminster in 1275, which listed the crimes eligible for bail.  In 1689, the English Bill of Rights outlawed excessive bail amounts.  After the American Revolution, the states enacted their own bail laws, and the Eighth Amendment to the Constitution echoes the English Bill of Rights in prohibiting "excessive bail."

But the right to bail isn't absolute.  Various state and federal laws govern bail amounts, conditions, and the circumstances that may cause a defendant to be denied bail.  Public safety is the number one concern when determining bail. For instance, defendants who may be a danger to the community, are flight risks, or charged with very serious violent crimes are often denied bail -- or the bail amount is so high that the defendant is unable to obtain release.

A 2002 US Department of Justice (DOJ) study of felony defendants found that 38% of defendants in the nation's 75 most populous counties were held in jail until trial or disposition of their cases.  62% were released by the court prior to disposition: 41% of those defendants were released on a bail bond.

Protecting Defendants and Their Families

Where do those defendants go after they're released on bail?  They go home.  While the defendants are awaiting trial or disposition of their case, they're able to keep going to work, paying their bills, and looking after their families. The DOJ study reported that 68% of defendants were convicted in cases that were adjudicated within a year.  That's a lot of guilty pleas/verdicts - but it also means that 32% either had charges dismissed or were found not guilty. Without access to bail, people could lose their homes, jobs, and maybe even their children to the foster care system – before they've been convicted of a crime.

Bail bonds also help protect defendants' physical safety. Many jails are overcrowded, dangerous places, and the longer someone is held, the greater the chance for injury or even death.  As the Los Angeles Times reported: "Since 2000, 15 people have been slain in Los Angeles County jails, including several low-risk inmates killed by gang members or other dangerous convicts." 

Prison violence is sometimes unavoidable, but overcrowding makes a bad situation worse.  A September, 2007 Los Angeles Times article contains this example:

"One inmate, Eric L. Gipson, testified that he was the sixth man in a "dirty, nasty," five-man jail cell and forced to sleep under another man's bunk. In such a situation, he said, "you think about hurting somebody. You think. . . you're bigger than that guy that's got a bunk, and you want to take him off the bunk and smash him down and take his bunk."

The DOJ study found that the overall median time from arrest to adjudication was 98 days.  However, inside that category, the actual numbers vary widely.  Depending on the crime defendants may spend as few as 30 days awaiting trial to over 200 days.  On average, defendants held in custody before trial had their cases handled more quickly.  But remember: even one day in jail is a long time.

Without the right to bail, there's simply no presumption of innocence. Defendants could stay in jail for months without ever being convicted on a crime.  During that time, the government has the responsibility for their room and board, medical costs, and safety.

Jail Overcrowding and Incarceration Costs

All those state responsibilities add up – quickly.  According to the Urban Strategies Council, in 2004, the cost to house an inmate in a California state prison was $30,929 per year.  The cost in the Alameda County Jail was estimated at $27,167.

In 1998, the California Department of Corrections reported that 71,913 beds were available in California's 449 county jails, and the average daily inmate population was 76,302.  58% of these inmates, on average, were awaiting trial or disposition. 

The huge inmate population strains local resources.  Between 1985 and 1998, California county jail annual operational costs increased from $446 million to $1.5 billion.  Without the bail bond system, more inmates would be held for longer periods, resulting in the need for even more prison beds – and increasing the burden on an already-overextended jail system.

Transferring Risk From the State to Private Enterprise

Some states have experimented with an alternative to the system of private, licensed bail bond agents.  In those states, defendants pay the 10% bail premium directly to the courts.  Results have been mixed. 

The American Legislative Exchange Council studied these programs and found that:

"The fugitive rate for private bail agents was less than one percent, much lower than the 20 to 30 percent demonstrated by publicly funded bail programs."

The ALEC report noted that an already-overburdened court system isn't equipped to constantly monitor defendants.  During a committee hearing, the Honorable Robey Willis, Legislative Chairman, Nevada Judges Association, emphasized that point to state legislators who were considering bail reform legislation:

"As far as the courts becoming a bondsman...collecting fees...that is one more unfunded mandate you are passing down to the court."  Judge Willis said the association also was concerned with "truth in bail," and the matter of law enforcement having to find those persons who do not appear in court.  He indicated a bail bondsman has a "stake in something they have lost."  Judge Willis added they do not have someone at the court "...to go out and look for absconders."

Bail agents do indeed have a stake in making sure defendants return to court as required.  Quite literally, the bail bondsman is the defendant's jailer.  If the defendant fails to appear, the bail agent must pay the court the full bail amount.  At this point, the person who signed the bail contract – usually a close friend or family member – is liable.  Someone who struggled to pay $1000 for the 10% bail premium now has to come up with $10,000.

The defendant knows this, and is almost never indifferent to his obligation to his family.  When Grandmother's house is on the line, it's a powerful incentive to return to court.

Compare that to the system of court-sponsored bail.  If a defendant pays the same $1,000 and fails to appear, the state's only recourse is a civil suit to recover the full $10,000.  Think about it: Grandmother out of the street versus a lawsuit against someone who may not have any assets anyway. 

When taken collectively, the benefits of the bail bond system are astounding:

• It transfers risk from the state to private companies and individuals. 
• It protects the rights of defendants.
• It helps protect defendants' physical safety by removing them from overcrowded jails. 
• It saves tax money that would otherwise be spent on housing, medical care, and larger jails.

That's quite a return on a system that doesn't cost taxpayers a dime!