Well, the name of this blog is “Bail Basics,” and there’s nothing more basic in the field than the meaning and purpose of bail itself. So basic, in fact, that I’ve spent the last six months tracing the history of bail from England to America to determine its proper meaning and purpose. It’s important to think about, I believe, because I’m starting to see a nasty trend in America concerning this very thing.
That trend concerns the notion that it’s okay for the government to use bail as a way to “pay for stuff” – from public defenders, to restitution, to costs and fees, to other worthy programs that simply need money. Interestingly, I have seen both commercial bail bondsmen and those of us who can be said to oppose commercial bail bondsmen pulled almost hypnotically toward the idea. I mean, think about it: since there is so much money involved at bail, why not use it to pay for services? And since there is no decent check on the arbitrariness of money at bail (i.e., lawyers rarely object and appeal amounts of financial conditions, and appellate courts rarely overturn them) then we’re looking at a huge pool of money. This pool becomes even bigger if we can just get a judge to say “fifty thousand dollars” instead of “ten thousand dollars” in any given case. And believe me; it’s not all that hard to get a judge to make that jump.
So why not use bail to pay for stuff? Because the meaning and purpose of bail don’t allow it, and having a proper purpose for government action is the first step toward assessing that action under a variety of constitutional theories. Among other things, Stack v. Boyle can be read for the proposition that the government must have a proper purpose to limit pretrial freedom, and ever since that opinion was released in 1951 other courts and scholars have agreed that bail set for an improper purpose is unlawful. This follows from any legal analysis, such as in bail, which requires some sort of a balancing test to determine its propriety. In bail, you’re allowed to limit pretrial freedom, but you must do so only to achieve proper purposes. The ways that you choose to limit freedom must be balanced against your reasons for limiting it in the first place.
Technically, there’s only one proper purpose of bail itself, which is to release people. That’s why bail is correctly defined as a process of release, and why the U.S. Supreme Court has equated the right to bail with the right to freedom before conviction and the right to release before trial. Concomitantly, the purpose of “no bail,” which is also lawful if done correctly, is to detain people.
The constitutionally valid purposes of conditions of bail (and that’s what we’re talking about when we talk about money – a financial condition of bail) are court appearance and public safety. Those are the only two purposes that have been approved by the courts thus far in the history of bail in England and America. Not punishment. Not detention. Not making money. In fact, some states have some pretty big authority for this last prohibition when their courts state explicitly that bail may not be set to “enrich the treasury.” By the way, when we talk about money at bail, the only truly proper purpose is court appearance and not public safety (for a variety of reasons), but that’s the topic of another blog.
The reason that I’m writing about this today is because I saw a recent Indiana newspaper article that reported on a former bail bondsman presenting a plan to the legislature to get judges to use more surety bonds by dividing up the potential forfeitures among a variety of entities, including the court, the public defender, the clerk of court, and even to a school fund. I can’t blame bondsmen for trying this tactic – if they can get everyone to share in the profit of bail, then they might be able to maintain their own hold on the system and continue to profit from it themselves. They are a business, after all, supported by big corporate insurance companies with a fiduciary duty to make money despite whatever erosion to justice that may cause.
But that’s no excuse for people who actually administer bail, and I have seen plenty of those folks succumb to the allure of using money at bail to “pay for stuff.” For example, during its recent fight over whether to re-introduce commercial bail bondsmen to Wisconsin, the state’s judges and court clerks said a commercial bail bond system will interfere with their ability to collect restitution from defendants’ financial conditions of release. Interestingly, it was commercial bail bond industry supporter and ALEC member, Assembly Speaker Vos, who pointedly stated, “The point of bond is never to pay court costs.” He was wrong on everything else he was trying to do surrounding bail in Wisconsin, but he was dead-on about the purpose.
Even in my home state of Colorado, we had a number of well-intentioned folks putting together various bills that included using financial conditions of release to pay for stuff like pretrial services programs. One bill, which would have forced judges to apply even non-forfeited monetary conditions of bail to court costs, etc., was thankfully amended to at least make it non-mandatory.
The reason all of this is important is because money doesn’t do anything at bail except detain people. And as more and more people learn this, they are using money less and less. That’s why the bondsmen are coming up with innovative plans to persuade others to share in the potential profit of a money-based bail system. It’s a last-ditch effort in some areas to retain a money-based system over a risk-based one that instead uses appropriate conditions that actually work to provide reasonable assurance of public safety and court appearance. Unfortunately, if people succumb to the allure of the money, they will only perpetuate a process that history shows is unfair and simply doesn’t work.
I think it’s quite simple. If any judge were to set a financial condition on a bail bond and announce on the record, from the bench, that the amount was necessary so that the defendant could help pay for various programs across the state, that bail setting would be declared clearly unlawful on appeal. Of course, judges don’t tend to say those things on the bench, which is why it’s important that we articulate and effectuate the proper and improper purposes of bail so that the improper ones can’t possibly creep in.