Nov 11

Literature and Legal References Governing Bail Bonds

lady justiceIt is always a good idea, should you be involved in a legal proceeding, to do your own research. Of course, having competent legal assistance is best, but sometimes, there are just some things that can escape your understanding even when a lawyer explains them to you. Everyone is always encouraged to learn more about the laws, particularly since it has been touted numerous times that ignorance of the law does not excuse anyone. But where do you look to learn more about bail, the bail process, and bail bonds?

In the Eighth Amendment of the United States Constitution, it has been stated that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” So, where an offense is considered bailable, the bail that is set should not be so excessive as to be impossible. United States v. Salerno in 1987 (481 U.S. 739) explains this as being not “excessive in light of the perceived evil.” And even earlier than that, bail would be considered excessive if it was “higher than reasonably calculated to ensure the defendant’s appearance at trial.” (Stack v. Boylee, 342 U.S. 1, 1951) But in a more direct statement on what constitutes “excessive,” the Supreme Court stated in 1909 that what is excessive are those who are “so grossly excessive as to amount to a deprivation of property without due process of law.” (Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 1909).

These days, the governing federal law on bail is the Bail Reform Act of 1984, which overrode the previous Bail Reform Act of 1966. One of the major changes imposed by the new act is that where before, pre-trial detention and bail was determined by a defendant’s risk of flight. In the 1984 Act, pre-trial detention could be ordered based upon the danger that defendant will pose to the community. In addition, the Uniform Criminal Extradition Act applies to govern the transfer of fugitives from one state to another, for the purpose of surrendering him back to judicial authorities.

constitutionAside from this general guidance provided by federal law and the U.S. Constitution, the particulars of bail, bail bonds, and even the legality of bounty hunting is largely determined by the laws of each state. There are at least four states that have abolished for-profit bail bonds completely, and these are Illinois, Kentucky, Oregon and Wisconsin. In addition to these four states, Maine and Nebraska have prohibited surety bail bonds since 2012.

Other states have not prohibited the practice of commercial bail bonds, but have opted instead to regulate the practice. There are published bail schedules which are supposed to guide judges in the imposition of bail amounts. Some states require bail bondsmen to be licensed before they can legally operate their business, and the license requires adherence to requirements and guidelines including the completion of required training and courses, and insurance coverage. The same kind of varying regulation applies to bounty hunters, where the practice is disallowed in some states and regulated in others.

More recently, there has been debate regarding the advantages and disadvantages of the commercial bail bond practice, as well as bounty hunting. And yet conversely, proponents for commercial bail bond practices have also argued for the ultimate benefit of the industry to criminal defendants, for whom release from pre-trial detention has resulted in better chances of participating more effectively during their trial.