Bail and Bond

The justice system employs bail to induce released defendants to appear for their criminal trials. In order to be released before trial, defendants are ordered to deposit money or other collateral with the court. Defendants who flee the jurisdiction forfeit their collateral and will still be brought to trial if they are captured. Those who return for trial, on the other hand, are entitled to the return of their collateral whether or not they are found guilty.

Typically, judges are responsible for setting bail, but prosecutors and police officers set bail in some jurisdictions. Even when judges are responsible for setting bail, other individuals (e.g., the prosecutor or a victim) may influence the decision on whether to grant bail or on how much bail is required. A prosecutor, for example, may ask that bail be denied because the accused represents a danger to the community or victim, or may ask for a high bail bond amount if the charges are serious enough to increase the likelihood that a bailee (i.e., the defendant) will abscond. The defense attorney, on the other hand, may argue that reasonable bail should be granted given the client's financial situation or lack of criminal record (e.g., the accused is unemployed or the sole source of support for his or her family). Research shows that judges are more likely to follow a prosecutor's recommendations than those made by the defense.

Law enforcement agencies also influence bail decisions. In most jurisdictions, law enforcement agencies follow guidelines issued by the court so that accused individuals can post bond and be released from custody without having to appear before a judge. In other jurisdictions, the bail amount is related to the charges. Defendants who are denied bail or who wish to get their bail amount reduced must wait until their initial hearings, which typically occur within forty-eight hours.

The U.S. Constitution does not guarantee any person bail, but it does state that bail must not be excessive. As yet, the Supreme Court has not established specific amounts of bail that are considered fair. Bail is typically related to the seriousness of the offense or the prior record of the accused. Other factors include whether the defendant is currently on probation or parole, lacks ties to the community, or has failed to appear for trial in the past. The presence of any of these factors may increase the bail amount, because the accused is viewed as more likely to flee before trial. Defendants charged with capital offenses are more likely to be viewed as flight risks, so they are less likely to be granted bail. Indeed, such defendants have good reason to abscond; they face very harsh sentences if convicted. Some accused murderers are granted bail, but only in those rare cases in which the defendant is believed to pose a low flight risk and little danger to the community.

Accused persons who represent a danger to the community or to another person may be denied bail, and instead may be subjected to preventive detention, meaning they will be held until trial or until the court feels they no longer pose a threat. Preventive detention decisions are not necessarily tied to flight risk, so defendants who pose a low flight risk might still be denied bail. Preventive detention is most often used with those accused of violent offenses that resulted in serious harm to another person.

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