bail

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Bail

The system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial.

In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made, and this option is called bail. Bail is set by the judge during the defendant's first appearance. For many misdemeanors, bail need not be set. For example, the defendant may be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.

The courts have several methods available for releasing defendants on bail. The judge determines which of these methods is used. One alternative is for the defendant to post a bail bond or pledge of money. The bond can be signed by a professional surety holder, the accused, or the family and friends of the accused. Signing the bail bond is a promise that the defendant will appear in the specified criminal proceeding. The defendant's failure to appear will cause the signers of the bond to pay to the court the amount designated. The amount of bail is generally an amount determined in light of the seriousness of the alleged offense.

A defendant can also be released upon her or his own recognizance, which is the defendant's written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognizance constitutes a crime.

Other conditions may also be set regarding the release of the defendant. The Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many additional conditions that do not rely upon finances and that reflected current trends to move away from financial requirements for freedom. These conditions came about, in part, owing to concerns regarding the discriminatory nature of bail toward the poor. The Bail Reform Act allows for conditional releases dependent upon such circumstances as maintaining employment, meeting curfews, and receiving medical or psychiatric treatment.

Civil Actions

A defendant in a civil action can be arrested to ensure that he or she will appear in court to respond to the plaintiff's claims. Civil arrest prevents a defendant from leaving the jurisdiction to evade the litigation, and from attempting to conceal or dispose of assets in order to keep the plaintiff from collecting on the judgment if the plaintiff prevails. Since civil arrest is a drastic remedy, state laws must be consulted to determine when it may be used. The purpose of bail in a civil action is to ensure the presence of the defendant at trial and to guarantee the payment of a debt or the fulfillment of some civil duty, as ordered by the court.

The court sets the amount of bail, which is generally based on the probable amount of damage against the defendant. In some instances, if informed of changed circumstances, the court might increase or reduce bail. Cash, as opposed to a bail bond, may be deposited with the court only when authorized by statute. The purpose of the arrest and the statutory provisions determine whether this deposit may be used to pay the judgment awarded to the plaintiff.

Criminal Prosecutions

The objective of bail in criminal actions is to prevent the imprisonment of the accused prior to trial while ensuring her or his appearance at trial. Constitutional and statutory rights to bail prior to conviction exist for most offenses, but state constitutional provisions and statutes must be consulted to determine the offenses to which bail applies. The Bail Reform Act of 1984 governs bail in federal offenses. It provides the federal magistrate with alternatives to the incarceration of the defendant. If the charge is a noncapital offense (an offense not punishable by death), the defendant may be released on her or his own recognizance. If there is a reasonable likelihood that the defendant will not return for trial, the judge may impose bail. The judge may also release the defendant into the custody of a designated person or organization for supervision. Restricting the residence, extent of travel, and personal associations of the accused are other options.

Discretion of the Court

A court exercises its discretion with respect to the allowance of bail. In reaching its decision, it evaluates the circumstances of the particular case, including the existence of doubt as to the accused person's appearance at trial. Unreasonable delay or postponement in the proceeding, which is not attributable to the accused, usually constitutes a ground for bail—in some jurisdictions, by absolute right; more frequently, at the discretion of the court.

In jurisdictions in which it is neither proscribed nor regarded as an absolute right, the grant of bail pending a motion for a new trial, a review, or an appeal is also discretionary. The grant of bail is then determined in light of the probability of reversal, the nature of the crime, the likelihood of the defendant's escape, and the character of the defendant.

The decision to grant or deny bail is reviewable, but the scope of the review is limited to whether the court abused its discretion in its determination.

The amount of bail set is within the discretion of the court. Once fixed, it should not be modified, except for good cause. An increase cannot be authorized when the arrest warrant specifies the amount of the bail. An application for a change in bail is presented to the court by a motion based on an Affidavit (a voluntary written statement of facts) confirmed by the oath of the person making it. The affidavit must be taken before a person authorized to administer such an oath and must contain the facts justifying the change. The Eighth Amendment to the Constitution and the provisions of most state constitutions prohibit excessive bail, meaning bail in an amount greater than that necessary to ensure the defendant's appearance at trial.

The Bail Reform Act of 1984 helped to set guidelines allowing courts to consider the danger a defendant might present if released on bail. This response to the problem of crimes committed by individuals who had been released on bail marked a significant departure from earlier philosophies surrounding bail. Bail laws took on a new importance; they would ensure the appearance of the defendant in proceedings, and they would see to the safety of the community into which the defendant was released.

Pursuant to the 1984 act, if the court deems that the accused may, in fact, pose a threat to the safety of the community, the accused may be held without bail. In 1987, United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697, addressed the constitutionality of holding an individual without bail while awaiting criminal trial. The Supreme Court held that due process was not violated by the detention of individuals without bail.

Breach and Forfeiture

A breach of the bail bond occurs in both civil and criminal actions when the defendant "jumps bail" or "skips bail"—that is, deliberately fails to return to court on the specified date, thereby forfeiting the amount of the bond. The act of jumping bail is either a misdemeanor or a felony, depending upon statute. The mandatory appearance required in a bail arrangement consists not merely of responding to the charges but also of attendance by the defendant at the trial and sentencing by the court. Appearance by counsel ordinarily does not prevent a breach, although under some statutes, where the offense is a misdemeanor, such an appearance might be sufficient.

When a bond is breached, the court enters a judgment of Forfeiture of the bail. In some jurisdictions, the judgment is appealable, but only if the failure to comply with the conditions of the bond was excusable and the state suffered no loss of rights against the defendant.

A final judgment normally cannot be entered on recognizance or bail bond without additional proceedings. Such proceedings are usually of a civil nature and follow the forfeiture of bail. These proceedings can be commenced by a writ (a court order) of scire facias (a judicial writ requiring the person against whom it is brought to show cause why the party bringing it should not have advantage of such record) or by an independent action.

Further readings

Bredefeld, Nicole J. 2001. "The Bail Reform Act of 1984 and Felons who Possess Weapons: Discrepancy Among the Federal Courts." Seton Hall Legislative Journal 26 (September): 215–62.

Colbert, Douglas L., Ray Paternoster, and Shawn Bushway. 2002. "Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail." Cardozo Law Review 23 (May): 1719–93.

Goldfarb, Ronald. 1965. Ransom: A Critique of the American Bail System. New York: Harper & Row.

Israel, Jerold H., ed. 2001. Criminal Procedure: Constitutional Limits, in a Nutshell. 6th ed. St. Paul, Minn.: West Group.

LaFave, Wayne R., Jerold H. Israel, and Nancy J. King, eds. 2000. Criminal Procedure. 3d ed. St. Paul, Minn.: West Group.

Sharma, R. 2001. Human Rights and Bail. New Delhi, India: APH Publishing.

Thomas, Wayne H. 1976. Bail Reform in America. Berkeley: Univ. of California Press.

United States House of Representatives. Committee on the Judiciary. Subcommittee on the Constitution. 2000. Bounty Hunter Responsibility Act of 1999: Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Sixth Congress, second session, on H.R. 2964, March 30,2000. Washington, D.C.: U.S. Government Printing Office.

Cross-references

Due Process of Law; Eighth Amendment; Recognizance.

bail

1) n. the money or bond put up to secure the release of a person who has been charged with a crime. For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes the amount of bail is set by the judge at the suspect's first court appearance. The theory is that bail guarantees the appearance of the defendant in court when required. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail by non-appearance since the bail is equivalent to the fine. 2) v. to post money or bond to secure an accused defendant's release. This is generally called "bailing out" a prisoner. (See: bail bond, bail bondsman, own recognizance)

bail

noun assurance, bond, caution money, collateral, earnest, gage, guaranty, indemnity, pignus, pledge, security, surety, undertaking
Associated concepts: admission to bail, bail bond, bail piece, bonds, cash bail, common bail, excessive bail, execute on bail, forfeiture of bail, ne exeat, recognizance, reduction of bail, reeease on bail, revocation of bail, special bail, straw bail
See also: pledge, security

bail

the release of an accused person pending further process, a procedure known in England since the time of Richard III. There is a presumption in favour of bail. Money bail is uncommon in the UK having been replaced by the imposition of conditions. Bail need not be granted if there are substantial grounds for believing that the accused would re-offend, interfere with witnesses or abscond. Breach of bail is in itself an offence. A person who is not granted bail is placed on REMAND.

BAIL, practice, contracts. By bail is understood sureties, given according to law, to insure the appearance of a party in court. The persons who become surety are called bail. Sometimes the term is applied, with a want of exactness, to the security given by a defendant, in order to obtain a stay of execution, after judgment, in civil cases., Bail is either civil or criminal.
     2.- 1. Civil bail is that which is entered in civil cases, and is common or special bail below or bail above.
     3. Common bail is a formal entry of fictitious sureties in the proper office of the court, which is called filing. common bail to the action. It is in the same form as special bail, but differs from it in this, that the sureties are merely fictitious, as John Doe and Richard Roe: it has, consequently, none of, the incidents of special bail. It is allowed to the defendant only when he has been discharged from arrest without bail, and it is necessary in such cases to perfect the appearance of the defendant. Steph. Pl. 56, 7; Grah. Pr. 155; Highm. on Bail 13.
     4. Special bail is an undertaking by one or more persons for another, before some officer or court properly authorized for that purpose, that he shall appear at a certain time and place, to answer a certain charge to be exhibited against him. The essential qualification to enable a person to become bail, are that he must be, 1. a freeholder or housekeeper; 2. liable to the ordinary process of the court 3. capable of entering into a contract; and 4. able to pay the amount for which he becomes responsible.
     1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5 Taunt. 174; Lofft, 148 3 Petersd. Ab. 104.
     2. He must be subject to the ordinary process of the court; and a person privileged from arrest, either permanently or temporarily, will not be taken. 4 Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.
     3. He must be competent to enter into a contract; a feme covert, an infant, or a person non compos mentis, cannot therefore become bail.
     4. He must be able to pay the amount for which he becomes responsible. But it is immaterial whether his property consists of real or personal estate, provided it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit. Rep. 97; 11 Price, 158; and be liable to the ordinary process of the law; 4 Burr. 2526; though this rule is not invariably adhered to, for when part of the property consisted of a ship, shortly expected, bail was permitted to justify in respect of such property. 1 Chit. R. 286, n. As to the persons who cannot be received because they are not responsible, see 1 Chit. R. 9, 116; 2 Chit. R. 77, 8; Lofft, 72, 184; 3 Petersd. Ab. 112; 1 Chit. R. 309, n.
     5. Bail below. This is bail given to the sheriff in civil cases, when the defendant is arrested on bailable process; which is done by giving him a bail bond; it is so called to distinguish it from bail above. (q. v.) The sheriff is bound to admit a man to bail, provided good and sufficient sureties be tendered, but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4 Anne, c. 16, Sec. 20; B. N. P. 224; 2 Term Rep., 560. The sheriff, is not, however, bound-to demand bail, and may, at his risk, permit the defendant to be at liberty, provided he will appear, that is, enter bail above, or surrender himself in proper time. 1 Sell. Pr. 126, et seq. The undertaking of bail below is, that the defendant will appear or put in bail to the action on the return day of the writ.
     6. Bail above, is putting in bail to the action, which is an appearance of the defendant. Bail above are bound either to satisfy the plaintiff his debt and costs, or to surrender the defendant into custody, provided judgment should be against him and he should fail to do so. Sell. Pr. 137.
     7. It is a general rule that the defendant having been held to bail, in civil cases, cannot be held a second time for the same cause of action. Tidd' s Pr. 184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur. 594. See Auter action Pendent; Lis pendens.
     8. - 2. Bail in criminal cases is defined to be a delivery or bailment of a person to sureties, upon their giving, together with himself, sufficient security for his appearance, he being supposed to be in their friendly custody, instead of going to prison.
     9. The Constitution of the United States directs that "excessive bail shall not be required." Amend. art. 8.
    10. By the acts of congress of September, 24, 1789, s. 33, and March 2, 1793, s. 4, authority is given to take bail for any crime or offence against the United States, except where the punishment is death, to any justice or judge of the United States, or to any chancellor, judge of the supreme or superior court, or first judge of any court of common pleas, or mayor of any city of any state, or to any justice of the peace or other magistrate of any state, where the offender may be found the recognizance @tal,-en by any of the persons authorized, is to be returned to the court having cognizance of the offence.
    11. When the punishment by the laws of the United States is death, bail can be taken only by the supreme or circuit court, or by a judge of the district court of the United States. If the person committed by a justice of the supreme court, or by the judge of a district court, for an offence not punishable with death, shall, after commitment, offer bail, any judge of the supreme or superior court of law, of any state, (there being no judge of the United States in the district to take such bail,) way admit such person to bail.
    12. Justices of the peace have in general power to take bail of persons accused; and, when they have such authority they are required to take such bail There are many cases, however, under the laws of the several states, as well as under the laws of the United States,, as above mentioned, where justices of the peace cannot take bail, but must commit; and, if the accused offers bail, it must be taken by a judge or other,, officer lawfully authorized.
    13. In Pennsylvania, for example, in cases of murder, or when the defendant is charged with the stealing of any horse, mare, or gelding, on the direct testimony of one witness; or shall be taken having possession of such horse, mare, or gelding, a justice of the peace cannot admit the party to bail. 1 Smith's L. of Pa. 581.
    14. In all cases where the party is admitted to bail, the recognizance is to be returned to the court having @jurisdict on of the offence charged. Vide Act of God. Arrest; Auter action pendent; Deat Lis pendens.