Friday, July 4, 2014

Bail on the Fourth of July

Well, here it is -- the Fourth of July -- but before I make like Joe Dirt and "keep on keepin' on" by crankin' up some Free Bird and lighting some Black Cats and Nipsy Daisers (with and without the scooter stick), I want to highlight a part of the American history of bail that I think we tend to forget.

America borrowed most its bail laws and practices from England, but at the time of the Revolution one thing that the Colonies definitely did not like about English bail law was how it gave people a right to bail but then simultaneously allowed persons of high authority (like the Crown) the discretion to deny it in any particular case. In fact, the Colonies disliked this discretion to deny bail so much that when they crafted their bail statutes and constitutional bail provisions, they typically articulated broad, unfettered rights to bail for all except those charged with a few (typically capital) cases. Pennsylvania's bail provision, which became the model for virtually the whole country thereafter, articulated a right to bail for all persons except in capital cases "where [the] proof is evident or the presumption great," adding a requirement to consider the evidence even in capital cases.

Both in England and America at the time of the Revolution, if you were bailable, you were supposed to be released. Bail equaled release, and, according to Blackstone, people who were deemed bailable during the Colonial period were almost all released. This was due to how we managed bail at that time, which involved using what we would now call "unsecured bonds" administered primarily through a personal surety system. Indeed, if you read about it, you quickly see that our use of money at bail in Colonial America was vastly different to how it is now. For starters, nobody was allowed to profit from bail. There were no bail bondsmen and no insurance companies, and none of the seediness that tends to follow those groups around. Moreover, if you were a defendant, you couldn't even promise to pay back a surety who took responsibility for you before your trial (i.e., indemnification was not allowed). The personal sureties' responsibility to make sure defendants returned to court was an important one, and the courts rightfully felt that promising to pay those sureties back in the event of a default took away any incentive for them to fulfill their great duty. Finally, the financial conditions -- the amounts of money actually tied to court appearance -- were due and payable only if defendants didn't show up for trial. Nobody had to pay anything up front to get out of jail. Nobody had to come up with fees or collateral for bondsmen. And virtually every bailable defendant was released pretrial. In short, everything worked pretty good.

Think about that on a day like today, when we celebrate the freedom given to us as our birthright. As we celebrate that freedom, remember that we do so not only in the sense of moving away from the "repeated injuries and usurpations" of a tyrannical government. We also celebrate the expanded rights and liberties created in the wake of our separation, which should inspire us, once again, to make whatever changes are necessary to administer bail so that pretrial liberty truly is the norm.