Bail Bonds Essay, Research Paper

Criminal Law term paper

17OCT00

Bail Bonds

The principle of bail is basic to our system of justice and its practice as old as English law itself. When the administration of criminal justice was in its infancy, arrest for serious crime meant imprisonment without preliminary hearing and long periods of time could occur between apprehension and the arrival of the King’s Justices to hold court. It was therefore a matter of utmost importance to a person under arrest to be able to obtain a provisional release from custody until his case was called. This was also the desideratum of the medieval sheriff, the representative of the Crown in criminal matters,

who wore many hats including that of bailing officer. He preferred the conditional

release of persons under arrest to their imprisonment for several reasons: it was less

costly and troublesome; the jails were easy to breach and under then existing law the

Jailer was hanged if a prisoner escaped; the jails were dangerous to health, and as there was no provision for adequate food, many prisoners perished before trial was held Purpose Of Bail – 2Influenced by factors such as these, the sheriff was inclined to discharge himself of responsibility for persons awaiting trial by handing them into the personal custody of their friends and relatives. Indeed, in its strict sense, the word “bail” is used to describe the person who agrees to act assuredly for the accused on his release from jail and becomes responsible for his later appearance in court at the time designated. As surety, the bail was liable under the law for any default in the accused’s appearance. Purpose Of Bail – 3Between the 13th and 15thcenturies the sheriff’s power to admit to bail was gradually vested, by a series of statutes, in the justices of the peace. In the case of a person committed for felony, the justices of the peace had the authority to require, if they thought fit, his remaining in jail until the trial took place, but, on the other hand, a person committed for a misdemeanor case could, at common law, insist on being released on bail if he found sufficient sureties. Writing in the mid-1700’s, Blackstone described the arrest-bail procedure his day in the following passage: “When a delinquent is arrested…he ought regularly to be carried before a justice of the peace…If upon…inquiry it manifestly appears that either no such crime was committed or that the suspicion entertained of the prisoner as wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must be committed to prison or give bail; that is, put in his securities for his appearance to answer the charge against him. This commitment, therefore, being only for safe custody, wherever bail will answer the same intention it ought to be taken…Bail is…a delivery or bailment of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance; he being supposed to continue in their friendly custody, instead of going to goal.” The notion of bail pending trial was not changed over the centuries. For instance, Mr. Justice Robert H. Jackson of the Supreme Court in discussing its purpose said, “The practice of admission to bail, as it evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongfully accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense, Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice

The possibility that the accused might flee or hide must, of course, be squared with the traditional right to freedom pending trial. In order to reconcile these conflicting interests, therefore, his release on bail is conditioned upon his giving reasonable assurance in one form or another that he will appear at a certain time to stand trial. In this regard, the Supreme Court has remarked: “Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice or requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as an

additional assurance of the presence of the accused.” Modern statutes, which regulate bail procedure in detail today and vary from jurisdiction to jurisdiction, provide that an accused may be set at liberty pending trial in several ways. For example, he might be released without security by agreeing in writing to appear at a specified time and place, i.e., on “his own recognizance”; or he may execute a bond with a deposit of cash or securities in an amount equal to or less than the face amount of the bond; or he may execute a bail bond which requires one or more sureties. A bail bond, with sureties, is essentially a contract between the government on the one side and the accused and his

sureties on the other. Under the contract the accused is released into the custody of the

sureties on their promise to pay the government a stated sum of money if the accused

fails to appear before the court in accordance with its terms. Historically, the contract of

bail, traced to a gradual increase of faith in the honor of a hostage and the consequent relaxation of actual imprisonment, constitutes one of the first appearances of the

concept of contract in our law. The early contract of bail differed from the modern bail

bond in its mode of execution as it was simply a solemn admission of liability by the

sureties made in the presence of an officer authorized to take it. No signatures of the bail

was required, and it was not necessary for the person bailed to bind himself as a party. The undertaking to forfeit a particular sum in a written bail bond came later in the course

of time. The purpose of a bail bond with sureties is to insure that the accused will appear in court at a given time by requiring others to assume responsibility for him on penalty of forfeiture of their property. In times past, especially when the sureties were friends and relatives of the accused, it was assumed that due to his personal relationship the threat of

forfeiture of the surety’s property would serve as an effective deterrent to the accused’s temptation to break the conditions of the bond by flight. On the other hand, it was assumed that this threat would also inspire the surety to keep close watch on the

accused to prevent his absconding.

On a bail bond, the accused and the sureties are the obligors, the accused being the principal, and the government as the obliged. In the event the conditions of the bail bond are satisfied, the obligation is void: the accused and his sureties are exonerated; and any cash or other securities deposited are returned to them. If there is a breach of the bail bond’s conditions, however, the obligation remains in full force, and the accused and his

sureties are liable to the government for the sum stated. A forfeiture of the bond will

be declared on default; but in the interests of justice the forfeiture may be set aside or,

if entered, its execution may be stayed or the penalty remitted. For example, the surrender of the principal after forfeiture does not discharge the surety but nevertheless the court may receive the surrender and remit the penalty in whole or in part. As in the past, the sureties on a bail bond in England are still the friends and relatives of the accused. Consequently, the relationship between them remains personal and the accused’s natural sense of moral obligation to satisfy the conditions of the bond is strong. As a result the English experience has been, on the whole, that very few persons admitted to bail fail to appear for trail. In the United States, however, this close relationship has generally

yielded to a distant impersonal connection the more obligation has become in the main a

financial one. More often than not the sureties on a bail bond are surety companies and

professional bail bondsmen who operate on a broad scale and charge fees for their

services which may not only be large but also irretrievable regardless of whether the

accused appears.

Under the traditional view taken in England, bail is not a mere contract of suretyship and the accused is not allowed to indemnify the bail. In fact it has been held that any arrangement between the accused and his sureties to the effect that he will indemnify if he absconds is so contrary to public policy that it is void as an agreement and, moreover, is indictable as a conspiracy to pervert the course of justice. This view

contrasts with that taken in the United States where an express agreement by the principal to indemnify the surety on forfeiture of a bail bond is not so regarded. Thus, in a Supreme Court case, where the argument was made that it was contrary to public policy to authorize a principal to contract to indemnify his sureties in a criminal case since

it would destroy the effective safeguards provided by the interested watchfulness of the

bail, Mr. Justice Oliver Wendell Holmes stated: “The ground for declaring the contract invalid rests rather on tradition than on substantial realities of the present day. It is said that…nothing should be done to diminish the interest of the bail in producing the body of his principal. But bail no longer is the “medium” although a trace of the old

relation remains in the right to arrest. The distinction between bail and suretyship is pretty nearly forgotten. The interest to produce the body of the principal in court is impersonal and wholly pecuniary. If, as is this case, the bond was for $40,000, that sum was the measure of the interest of anybody’s part, and it did not matter to the Government what person ultimately felt the loss, so long as it had the obligation it was content to take. Despite the tenor of the foregoing passage, courts still stress the need for a moral as well as financial assurance of the accused’s appearance in court. For example, in a case

where the bail offered was a certified check from a individual, the Federal Court of Appeals for the Second Circuit in requiring disclosure of the source of funds on which the check was drawn declared: “The giving of security is not the full measure of the bail’s

obligation. It is not the sum of the bail bond that society asks for, but rather the presence of the defendant. If the court lacks confidence in the surety’s purpose or ability to secure the appearance of a bailed defendant, it may refuse its approval of a bond even though the financial standing of the bail is beyond question.”