Death of a Bail Bondsman: the Implementation and Successes of Nonmonetary, Risk-based Bail Systems

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 69 No. 6

Death of a Bail Bondsman: The Implementation and Successes of Nonmonetary, Risk-Based Bail Systems

William M. Carlucci

DEATH OF A BAIL BONDSMAN: THE IMPLEMENTATION AND SUCCESSES OF NONMONETARY, RISK-BASED BAIL SYSTEMS

Abstract

The Eighth Amendment to the United States Constitution provides that bail, when afforded to a criminal defendant, not be excessive. However, there is no provision as to what form bail must take or how it is to be determined. Starting in the twilight of the nineteenth century, monetary conditions of bail became increasingly prevalent throughout the United States. Yet, in recent years, there has been a movement to eliminate the requirement that defendants pay their way to pretrial freedom. States have taken measures to move away from cash bail, ranging from significantly limiting its use to outright prohibitions against monetary conditions on bail. The impetus behind such reform measures is that monetary conditions on bail discriminate against lower income defendants by disparately leading to pretrial detention of individuals who cannot afford to pay the required sum.

This Comment analyzes the relative success of the risk-based, nonmonetary bail systems that several states have implemented. This Comment begins by analyzing the history of the right to bail in the United States, starting with how such a right was understood at the time of the founding. Next, the evolution of the application of bail and the considerations behind pretrial release or detention determinations, are discussed. This Comment then proceeds to analyze how risk-based, nonmonetary bail systems have been codified and applied. Last, this Comment evaluates the impact that these schemes have had on the states of implementation and potential alterations that would allow for better administration of such legislation.

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Introduction...........................................................................................1207

I. History of the Right to Bail.....................................................1208

A. The Right to Bail in English History ...................................... 1208
B. The Right to Bail in the United States .................................... 1210

II. Prior Shifts in the American Bail System..............................1213

A. Attempts at a Risk Factor Analysis Model that Led to the Federal Bail Reform Act of 1966 ............................................ 1214
B. Tough on Crime Measures and Implementation of Preventative Detention ................................................................................ 1218
C. Implementation of the Federal Bail Reform Act of 1984 ........ 1222

III. Nonmonetary Bail Schemes......................................................1225

A. Jurisdictions and Purposes of Adoption of Risk-Based Models .................................................................................... 1226
B. Procedures and Implementation of Nonmonetary Bail .......... 1229

IV. Nonmonetary Bail Systems Should be Adopted...................1239

A. Perceived Failures and Deficiencies of Nonmonetary Bail .... 1239
B. Successes of Nonmonetary Bail Systems ................................ 1243
C. Suggested Changes to Nonmonetary Bail Systems ................. 1247

Conclusion...............................................................................................1252

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Introduction

Through bail reform, New Jersey reduced its jail population by 25%¹ and saved millions of dollars² without an increased risk to public safety.³ At the same time, low income individuals were able to remain in good health⁴ and maintain employment. These positive outcomes resulted from nonmonetary, risk-based bail legislation in New Jersey,⁵ amongst other states. Despite their effectiveness, the adoption of nonmonetary bail systems has not been widespread, as only a limited number of states have implemented such schemes.⁶

When payments are made a condition of pretrial release, there is a stratification between those who can afford to pay for their release and those who cannot.⁷ Certain presumptively innocent defendants "languish[] in jail weeks, months, and perhaps even years before trial," simply because they cannot pay for freedom.⁸ Racial and ethnic minorities are more likely to be adversely affected by monetary bail provisions.⁹

This Comment argues that risk-based bail provisions better protect the rights of pretrial defendants while imposing no additional costs—whether economic, administrative, or social—on the jurisdictions that administer them. This Comment proceeds in four Parts. Part I presents the history of the right to bail throughout Anglo-American law. The American understanding of the right to bail provides great discretion to the states in deciding how to afford their citizens the opportunity to pretrial release.¹⁰ Part II addresses shifting trends in the balance between the governmental interests in bail and the rights of pretrial

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defendants. Namely, it presents the origins of modern bail systems that emerged following the federal Bail Reform Acts of 1966 and 1984.¹¹ Part III explains the reasons for the adoption of risk-based bail systems and the form that such provisions take. By analyzing the specific characteristics of the defendant and the charged offense, courts seek to predict that defendant's risk to public safety and likelihood of flight before trial.¹² Finally, Part IV analyzes the level of success of nonmonetary bail systems and addresses major criticisms to and concerns over adoption of such provisions.

I. History of the Right to Bail

"For the law holds that it is better that ten guilty persons escape than that one innocent suffer."¹³ This prominent quote by William Blackstone embodies the perspective that Anglo-American law takes toward the punishment of criminals. However, this axiomatic principle is not applied to those accused of a crime who are awaiting trial. Despite the presumption of innocence present in American law,¹⁴ accused persons are detained before they are afforded their constitutional right to a trial.¹⁵ Yet, bail provides a mechanism to allow accused, non-convicted individuals to maintain their liberty. Bail balances a defendant's liberty interests with the government's interest in preserving public safety and assuring a defendant appears in court as required.¹⁶ The right to bail has long been debated in Anglo-American law, as its availability has shifted throughout history with numerous codifications altering the scope of the right.¹⁷

A. The Right to Bail in English History

The first provision of a right to bail can be found in the thirty-ninth chapter of the Magna Carta, which was promulgated in 1215.¹⁸ That chapter provided that "no freeman shall be arrested or detained in prison . . . unless lawful

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judgment of his peers and by the law of the land."¹⁹ This wording did not explicitly state whether it applied to pretrial defendants as well as post-conviction inmates. The Statute of Westminster, the First, partially clarified this ambiguity by setting forth a list of crimes for which pretrial bail had to be provided.²⁰ The division was predominately between felonies, which were not bailable, and noncapital crimes, which were bailable.²¹ Despite the provisions of this law, courts often refused to bail accused persons.²² Instead, judges relied on the Magna carta, which allowed for more judicial discretion, even though the new statute sought to remove this leeway.²³ Such decisions were often motivated by the desire to appease the king by accepting the arguments of the attorney general over those of the accused individuals.²⁴ This judicial abuse prompted debate in the House of commons over how to give force to the Statute of Westminster.²⁵ The House of Commons adopted the Petition of Right, which states that "no freeman in any such manner as is before mentioned, be imprisoned or detained."²⁶ Despite these efforts, judges still found ways to refuse bail to those for whom it should have been afforded.²⁷ Most popular amongst these methods was either waiting extended periods before setting bail²⁸ or setting conditions of bail that were impossible for a person to meet.²⁹

A major advancement in the rights of the accused came with the passage of the Bill of Rights of 1689,³⁰ which marked the first appearance of language similar to what would become the Eighth Amendment to the United States Constitution.³¹ The pertinent provision of the Bill of Rights of 1689 stated, "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."³² This enactment came out of the political

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turmoil caused by the Glorious Revolution and abdication of the throne by King James II.³³ After the tumultuous rule of James II and social unrest caused by religious tensions, the British Parliament sought to assure certain rights for the people of England and to grow the power of the legislative body.³⁴ consequently, the English system of pretrial detention had three components: (1) a legislative determination of which crimes were bailable; (2) a right to habeas corpus to determine the conditions of bail, where allowed; and (3) a provision that bail could not be excessive.³⁵ Each of these rights was seen as distinct and requiring legislative enactments to ensure them.³⁶ It was against this backdrop that the American colonies, and later the United States, developed their own independent laws in regard to bail.

B. The Right to Bail in the United States

In the American colonies, colonial governments were the first to adopt pretrial detention legislation.³⁷ Early forms of these provisions followed the English model by enacting separate legislation to provide a right to bail and protections from excessive bail.³⁸ The 1790 Constitution of Pennsylvania exemplified this approach. In one section, it stated that "all prisoners shall be bailable . . . unless for capital offences,"³⁹...