The bail system is an important part of the justice process in the US. America isn't the only country to require cash bail, but it does have a unique system with its own intricacies and complications. But how did bail come to be what it is today? The truth is that it has a long history, which makes for a fascinating tale. It goes all the way back to before the USA was even a country, with influence from Medieval English law.
The English Origins of Bail Laws
The origins of bail laws in the United States originate from English law, before the country ever existed as it is today. Before the late 13th century, people who were charged with a criminal offense would be required to pay the equivalent of the fine they would be given if found guilty. However, this system was regularly abused, which led to a change in law in 1275. Parliament determined several criteria for setting out bail to standardize the system. Bail would be determined based on the offense committed and how likely it was that the accused would be convicted, as well as their criminal history.
This history of bail in England would later influence the formation of bail laws in the United States when those who colonized North America brought their existing laws with them.
Bail in the Early United States
In the early colonial days of the United States, bail laws started to take shape before the country itself was fully formed. Separate states created their own bail laws. For example, Massachusetts passed the Body of Liberties in 1641, codifying the right to bail for people accused of non-capital offenses. In Pennsylvania, a 1642 law limited death penalty cases to any that involved "willful murder", thereby indirectly expanding the option of bail. It was this method that other colonies followed until the latter half of the 1700s.
In 1776, the year the Declaration of Independence was issued, things began to change. The Eighth Amendment of the US Constitution prohibits "excessive bail", which helps to ensure bail is fair. A further change in law came with the Judiciary Act in 1789, which set out the right to bail for people accused of non-capital offenses.
1966 Bail Reform
One of the most important pieces of the history of bail in the United States is the Federal Bail Reform Act of 1966. This act formalized bail laws further, providing clear guidelines from the federal government on what bail should look like across the country. The new law allowed people who were charged with non-capital offenses to be released on their own recognizance, i.e. without having to pay bail. The law also said that if the judge determined that being released on their own recognizance or a personal bail wouldn't be enough to ensure the defendant's appearance in court, they must choose the least restrictive option from a list of conditions. These include restrictions on travel, an appearance bond, or a bail bond with a sufficient number of solvent sureties.
These changes were designed to insure people would be released with as little burden as possible to make sure they would later appear at their trial. In other words, bail should be determined by considering the minimum that needs to be done to encourage the defendant's appearance in court and nothing else. The act also made it so that the defendant's danger to the community couldn't be considered in non-capital cases; this was only allowed in capital cases or after conviction. This part was criticized, especially as there were numerous instances of people accused of committing violent crimes carrying out further crimes when released on their own recognizance.
In 1969, the problems associated with the Bail Reform Act of 1966 were examined by the Judicial Council committee. The committee recommended that a defendant's potential danger to the community should be considered even in non-capital cases. The committee's proposals were implemented in the District of Columbia in 1970, allowing judges to consider dangerousness and flight risk in non-capital cases. The 1970 Act also featured multiple safeguards to make sure this was applied sensibly.
Bail Reform in 1984
Further bail reforms were made in the 1980s. The Comprehensive Crime Act 1984 essentially extended the law that was already in place in the District of Columbia. It allowed judges to consider the risk a defendant presents to the community and the level of flight risk when considering whether they could be released on bail. This meant that bail wasn't just intended to help insure defendants turn up to court but also to help keep communities safe from crime.
Recent Changes in Bail Laws
Since the 1980s, not a lot has changed in regard to how the bail system operates in the US. However, there have been some changes that are interesting to note. For example, right here in California, there have been some recent changes.
In March 2021, the California Supreme Court ruled that setting cash bail at an amount that the defendant couldn't afford was unconstitutional. However, some studies have shown that this change hasn't had much effect on either the level of pretrial detention or the affordability of bail in the state.
There have also been attempts to end cash bail in California completely. A 2018 bill to do so was rejected by voters in 2020. In Los Angeles County, people arrested and charged with most misdemeanors and non-violent felonies will now generally be released with an order to appear in court later, a change which came into effect in October 2023. Similar changes have also occurred in Cuyahoga County, Ohio. In Illinois, a recent change in the law has removed cash bail throughout the state.
However, there is significant resistance to abolishing cash bail. Many argue that it is a necessary feature of the justice system that helps to keep communities safe and make sure people appear in court when they are required to.
At King Stahlman Bail Bonds, we know how important it is to post bail as quickly as possible. Call today for fast help from our team 24/7.