Commercial Bail Bonds in the U.S.

In the latest of an occasional series on aspects of the U.S. justice system that are unique in the world, Adam Liptak of the New York Times looks at commercial bail bonds:

Here as in many other areas of the law, the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States has charted a distinctive and idiosyncratic legal path.

Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee.

America’s open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear.

After reading the article, I found myself — to my surprise — of two minds about the practice of commercial bail bonding.  The downside is, of course, that people have to pay a non-refundable fee in order to enjoy their freedom before their trial.  Forty percent of them end up not being convicted of anything, but that doesn’t mean they get their fee back.  Most of the people paying these fees are also of very modest means.

On the other hand, the system seems to do a pretty good job of making sure that most people (1) spend most of the time before their trial outside of jail; and (2) show up for court at the appointed time.  European countries, in which options for avoiding pretrial detention are much more limited, often draw criticism from human rights groups for excessive pre-trial detention; in fact, this is a recurrent issue within and beyond Germany — see here, here and here (g).  I’m not pointing any fingers or drawing any policy conclusions (yet), but it’s worth thinking about.

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