Sunday, December 7, 2014
I just read a bail insurance company's take on bail in Indiana, which is worth a quick comment. In the insurance company's post, the writer opines that the purpose of bail is to guarantee that a defendant comes back to court. Then, interestingly, the same fellow laments that by using what we call a "ten-percent-option," which allows defendants to post ten percent of the financial condition of his or her bond to the court, rather than to a bondsman, the Indiana judges are taking money away from that state's "Common School Fund." Apparently, making the defendants pay money for release in ways other than the ten percent method directly subsidizes this fund.
This raises an important question -- just what is the purpose of bail? Is it court appearance or is it to finance the Common School Fund? The answer is neither one.
What we know as bail today was created in England in the Middle Ages, and when it was created, the purpose of bail was to avoid blood feuds between family clans. This remained the primary purpose of bail right up until the Normans changed everything by making the criminal process more of a public process, with crimes of royal concern (like today having criminal actions brought by the state), presentment juries, itinerant justices, and jails. Ever since, the purpose of bail has been exactly what logic would tell you it is when jails are involved: to release people. Bail is a process of release, and its purpose is to release people pretrial, just as "no bail" is a process of detention, and its purpose is to detain people pretrial. The insurance fellow in question is getting a condition of bail or release confused with bail itself. In America pretrial release is always conditional (with at least one condition being to come back to court or the bond might be revoked) and placing those conditions on a defendant's freedom may only be done to provide reasonable assurance of public safety or court appearance.
So the purpose of bail itself is to release people, and the purpose of conditioning that release on something is to provide reasonable assurance of one of the two constitutionally valid purposes of court appearance or public safety. When bail insurance people say that the purpose of bail is court appearance only, they are making that statement from their particular business angle. Bail bondsmen and the insurance companies simply do not have anything to do with public safety -- universally across America you can't even forfeit money on a bail bond for a new crime, and so for this and other reasons money simply does not protect the public. In fact, a defendant who continually commits crimes but never misses court is actually considered to be a pretty good customer to the commercial bail industry. Additionally, bail bondsmen will typically skip talking about release rates or any other notion of releasing people -- universally across America bondsmen and insurance companies reserve the right to deny helping any defendant to gain his or her release for any reason, or for no reason whatsoever.
If we know the purpose of bail (which is to release people) and the constitutionally valid purposes of conditions of release (which are either court appearance or public safety) then we know, too, that any other purpose for conditioning release is likely an invalid purpose. That's why nearly every state has articulated through case law various invalid purposes, and one of the most common is setting bail to "enrich the treasury," or something like that. It's pretty simple, really, if you can only condition release to protect the public or to assure court appearance, then conditioning release to pay for things is an invalid purpose. I doubt that the Indiana courts have said that a legitimate purpose for conditioning someone's pretrial freedom is to help pay for things, but if they have then it would be a complete aberration to what other courts have said across America. And even if it's not unlawful under Indiana law, one of these days someone will run a case up the federal side that will set everyone straight.
The way to look at the purpose of bail is to think of only three things -- release, court appearance, and public safety. Any other reason for setting a bail bond, whether expressly or not, is likely an invalid purpose. That's why you can't set bail to punish people (another clearly unconstitutional purpose) or to detain people, especially when avoiding the lawfully enacted detention process in any particular state. It's like setting bail to impress your friends. Invalid. And under nearly every big theory of law applicable to bail, whether that theory be due process, excessive bail, or equal protection, the government has to first articulate a proper purpose for its action.
If you don't believe me about all of this, go find an Indiana judge and get him or her to expressly state on the record that he or she is setting a particular amount of a financial condition in order to help pay for various state services. Run that decision up the appellate ladder -- both state and federal -- and see what happens.
I cover all of this in more depth in my Fundamentals of Bail paper, which you can find on my website. Oh, and I just noticed that I already talked about the same basic thing in a blog from 9-23-13. Obviously, the purpose of bail and setting bail for invalid purposes is one of those "bail basics" that I intend to revisit more than once.