The Concept of Bail: Wherever Did it Come From?

Bail evolved informally over the centuries through the common laws of medieval England. It was meant to accommodate defendants who were often forced to remain in jail for many months until a circuit judge arrived to conduct a trial. A defendant was sometimes released if the local sheriff could trust that the accused would keep his word and return for the hearing, but more often custody was transferred rather than relinquished to a surety (relative or friend) who vouched for the defendant’s appearance when the time came.



The surety was placed in a terrible position because his guarantee to the sheriff was that if the defendant failed to appear, he would be judged in his stead. English law did little to lessen the risks to become a surety until courts began to accept pledges of cash rather than of one’s person. The system of bail only became perfected in the late 19^th century, after the United States developed a commercial surety system, which developed fair and equitable incentives for bail bondsmen.

Pre-trial service programs are available in every state, but in the past twenty years or so, some state laws have begun to restrict or ban entirely the use of bail bondsmen. Illinois, Kentucky, Oregon and Wisconsin have outlawed the use of commercial bail. This puts the cost of bail unfairly and squarely in the hands of law-abiding tax-payers, and it also places the criminal justice system in a dangerous (ineffective) position.

Failure to appear in court, especially if the defendant was released on his or her own recognizance or on government bail, automatically means a warrant is issued but that is just a piece of paper and often nothing else happens. The reason for this is that many states have a serious backlog of outstanding warrants and the state police is overwhelmed. In California alone, more than two million warrants remain unserved.

Many of these warrants are for minor offenses but many more (hundreds of thousands) are for more serious crimes, including homicide. Philadelphia, where there is no longer any commercial bail, had more than 47,000 unserved warrants in one year alone (2009). According to the Philadelphia Inquirer, “about the only time the city’s bail jumpers are recaptured is when they are arrested for some other crime…”

Where the bail industry thrives, this type of situation does not occur. Bondsmen are strongly motivated to bring bail jumpers to court because a non-appearance means they must cover the remaining cost of the bond. The largest and most comprehensive study on the bail system was published back in 2004 in The Journal of Law and Economics. Its focus was the disparity between the public and private sectors of bail and fugitive recovery, and it reinforced the fact that both bail bondsmen and bounty hunters get defendants to show up in court and re-capture them quickly if they don’t.

Despite the unpleasant media stereotyping of bounty hunters, the fact remains that they are an effective force, as felons sought by them are 50 percent less likely to be on the loose after one year on the lam than other bail jumpers. To the public at large, both bondsmen and bounty hunters work for free, as no tax dollars are ever involved.

Bounty hunters are determined to “get their man” and this focus is most often successful. The concept of bail has come a long way since its inception in medieval English law. Will it change again to accommodate the needs of the modern world?

Who can say?