Recognizance

While pretrial detention serves to ensure a defendant's court appearance, it raises ethical and legal questions about the appropriateness of punishing people who have not yet been convicted and are thus innocent until proven guilty. Pretrial detention can also have other negative consequences, including increased chances of a conviction and imposition of harsher sentences. It is unclear exactly which aspects of pre-trial incarceration are associated with these consequences. Some have posited that pretrial incarceration increases the chance of conviction by limiting defendants' ability to prepare their defense. The time spent in jail while awaiting trial might also pressure defendants to plead guilty in exchange for a quick release and a community-based sanction. Judges presiding over bench trials for inmates who have been subject to pretrial detention might also find it easy simply to sentence an inmate to time served.

The Manhattan Bail Project of 1961 highlighted the potential benefits of releasing defendants on their own recognizance (ROR). ROR involves defendants signing a written contract promising to appear in court. In exchange for that promise, defendants are released from custody without having to post bond. Between 1990 and 2004, 23 percent of releases for pretrial inmates charged with felonies in the 75 largest counties in the United States involved ROR, but such nonfinancial release is a much more common option for defendants charged with misdemeanors. ROR provides an opportunity for inmates to maintain family ties and jobs as well as participate in the preparation of their defense while awaiting the court date.

The use of bail to secure an offender's return to court for trial began in medieval England. Poor sanitary conditions and the spread of diseases in the jail, combined with delayed court proceedings, prompted the search for ways to free defendants while ensuring that they would return to court. The decision concerning who would be released on bail was largely left to the sheriff. Those posting bail were faced with the threat of losing money if the defendant failed to appear for the assigned court date. Bail is an aspect of the British pretrial system that was adopted by the United States following the revolution. The U.S. Constitution is vague on the issue of bail. The only mention of bail in the constitution is the Eighth Amendment's statement outlawing “excessive bail.” The federal government, however, did mandate, in the Judiciary Act of 1789, that bail was required for all arrestees with the exception of those charged with a crime that could result in the death penalty. The first large study of bail in the United States was conducted by Arthur Lawton Beeley in Chicago in 1927. Beeley found that bail was frequently set in excess of what defendants could afford, and ROR was granted to only 5 percent of defendants in Cook County.

The circumstances under which bail should be granted were clarified by the U.S. Supreme Court in Stack v. Boyle (342 U.S. 1, 1951). In the Stack ruling, the court held that the purpose of bail is to ensure the defendants' presence in court and to protect defendants from being punished prior to conviction. Furthermore, the Court ruled that bail set in excess of what would be reasonable to ensure the defendants' appearance is in violation of the Eighth Amendment. In his study of bail practices in Philadelphia during the early 1950s, Caleb Foote found judges who were willing to admit that they sometimes purposefully set bail that was too high for offenders to pay for several reasons, including wanting to make an example out of a defendant, attempting to protect a woman from an abusive husband or boyfriend, punishing a defendant who was most likely going to be acquitted or have the charges dismissed, or to trying to reduce crime in the city.

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