The Eighth Amendment of the United States Constitution states very plainly: “There shall be no excessive bail.” Bail is something held by the court in lieu of the defendant’s continued pretrial confinement, which “something” would be lost should the defendant not reappear as directed and which loss would be unacceptable to its owner, thus enlisting the owner to assist in assuring that reappearance.

It clearly did not occur to the framers of our country’s Constitution not to have embedded into our criminal justice system that methodology – a practice which would get the defendant to court but which would not treat him unfairly in the process, hence, the Eighth Amendment. And the Amendment was ratified by a majority of the states thereby making this concept of guaranteeing an accused’s appearance in court, as well as not treating him too harshly, an inherent part of our nation’s Bill Of Rights.

By this measure two “rights” were enshrined for all time in our system of criminal jurisprudence. One of them was the right of the people to have the accused be present in court for the resolution of the charges the people had, through their law enforcement representatives, brought against that person. Certainly the framers understood that absent that critical presence of the accused there could no accountability should the accused be found guilty of the charges against him. And that principle of accountability is the very keystone in the arch of our criminal justice system.

The other “right” assured by the framers and the states via the Eighth Amendment is that of the accused himself not to have that which the court insisted that it hold to guarantee reappearance be more than necessary to accomplish the desired purpose. In other words: the “bail” should not be “excessive”. Our highest court has itself answered the question: How much bail is too much bail? And it said that bail is “excessive” if it is in an amount greater than that reasonably necessary to ensure the appearance of the accused.

It is the responsibility of the judge in any given criminal case to set the conditions upon which a person charged with a crime may be released from pretrial custody in accordance with the requirements of the Constitution. And it is that judge’s sworn obligation to fully adhere to the mandate of The Eighth Amendment. In deciding what will be acceptable to guarantee reappearance, that judge is “hemmed in” on both sides. On the one hand, whatever is to be placed up has to be meaningful enough to the one putting it up to sufficiently motivate the accused to appear so the principle of accountability will be adequately protected. The party putting up the bail may be the defendant himself, in which instance he is said to be his own surety, or it may be some third party with whom the defendant arranges to put up the bail deposit. But whoever the surety turns out to be, the bail should be sufficient to assure reappearance. However, on the other hand, it cannot be higher than it has to be to accomplish that objective. Every time bail is set the judicial officer setting that bail is like a man walking a tight wire: if the bail is set too high he falls into the chasm of unfairness to the accused, but if on the other hand it is set too low to accomplish its purpose he falls into the abyss of failed duty to all of the people who have a right to that accused’s presence before the court at all appointed times.

All of this is what makes it so important that the court not be deprived of any of the resources legally available to it as it attempts to keep safe all the pertinent rights of the accused as well as all the other members of the community.

And yet, there are those today who seek to do precisely that: if not remove entirely, then weaken substantially, the most effective tool the court has in meeting appropriate bail objectives. This is what we mean by “handcuffing” the court. These advocates attempt to persuade state legislators, county government and law enforcement officials as well as other local opinion leaders to significantly limit the court’s use of one of the two methods available to the court to ensure appearances.

The two methods the court has to hand may be adequately described as “secured” and “unsecured” meaning, in the first instance, someone places with the court something of tangible value which would be “forfeited” should the accused fail to appear and in the second instance the accused would be released based solely upon his promise to reappear as instructed.

Is there anything inherently defective with either of these methods? No, there is not. There are times, surely, when the accused may be justifiably released with no tangible security to motivate his reappearance. There are others, however, when that promise alone will not suffice, and other influences are required to be brought to bear to keep that release within the established confines of the Eighth Amendment. These advocates should not, therefore, be so hasty to argue for diminution in the use of “secured” release and an increase in the use of “unsecured” release. And this especially when all the evidence on the subject of which method is most reliable establishes, without exception, that secured release significantly outperforms unsecured release in getting persons to court. Credible studies demonstrate this conclusively. And if one just thinks on this a bit, the reason why becomes obvious: the likelihood of performance in any endeavor is enhanced when there is something to lose by virtue of non-performance. It is no different in bail: if there is something of value to be lost by not appearing then the chances of appearance increase substantially. But the converse is also true: if there is nothing to lose by absconding, the temptation to skip out on court becomes stronger.

And getting persons to court is only one of the several ways in which secured release trumps unsecured release. Another of the benefits of secured release is lower recidivism among those out on bail which in turn of course results in fewer crime victims. There are also significant economic benefits to local as well as state governments in addition to less wasted time and resources for the courts. The reduction in extra work for law enforcement in trying to chase down those who flee is another advantage.

Why, then, would anyone lobby for reducing the courts’ use of the secured release option? There are a number of theories. No doubt one, some, of all of them are correct.

Some say it is in the vested interest of the local pretrial release agencies for them to promote forcing the private sector bonding insurance companies and their agents to get fewer people out of jail so the taxpayer funded county agency can increase the number of its own “customers”. These county government agencies are funded exclusively by county taxpayers while the private sector bonding company’s sole source of income is from the defendants who pay for the bonding companies’ services. Pretrial release agencies staff members interview newly arrested inmates and then recommend that the courts release defendants unsecured but to be monitored by the agency whose responsibility it is to get the defendant back to court. Many studies have been done in this area. One study in particular, a study performed on the Harris County, Texas agency, showed that persons monitored by the agency were twice as likely to fail to appear as were those on secured release. So some say these government agencies desire for the courts to curtail the use of secured release is all about both sides vying for the same inmates. They both “make their living”, so to speak, by getting persons out of pretrial custody.

Others say the campaign against private sector bail providers is ideologically motivated. This seems clearly to be true in the case of some anti-commercial bail advocates. A prime example would be the Pretrial Justice Institute (PJI), an organization dedicated to the national expansion of the use of local government operated pretrial release agencies while at the same time excluding the private sector bail providers altogether. PJI receives large dollar funding from the United States Attorney General’s Office. While replacing private businesses with government operated facilities seems to be the trend of the current administration in Washington, the PJI rationale goes beyond that and argues the proposition that there is something morally reprehensible about “money bail” – the practice of having someone pay a third party to deposit with the court the financial security necessary for that person to secure his release from pretrial custody. Their reasoning seems to be that getting the defendant released should be the government’s job, since the government is responsible for helping citizens in need. In this way, they promote a sort of “criminal welfare system” approach. This is totally logical of course, if one buys into the notion that this defendant has no responsibility for having gotten himself arrested in the first place. It is easy to see, then, that whether one agrees with their analysis depends solely on which side of the ideological line one falls on: “personal” responsibility or “social” responsibility.

There are no doubt other reasons some may offer to support their advocacy for “government operated release outlets” in place of private business service providers, despite the fact that their approach flies in the face of “bail” as contemplated by The American Constitution where “bail” meant someone having something of value to lose in the event the defendant absconded.

All of this begs an obvious question, doesn’t it? Why do they themselves say that government operators should replace private business women and men in this manner? The star they have hitched their wagon to is strangely this: commercial bail providers are the cause of today’s jail overcrowding problem. They say that many people languish in every large jail for the sole reason that they cannot afford to pay a commercial surety the premium to post their bond. There is no question that some urban counties are challenged by their jail populations. And it is certainly easy pickings for the government sponsored bail advocates to seize upon any problem they can find and announce: “Our opposition caused it. You need to get rid of them.” But in this case, is there even a hint of truth in their claim? If there is, nobody has produced it. We know that many groups of persons make up a large county jail’s inmate base. There are persons awaiting transport to the State penitentiary and persons serving county jail time and persons on hold by another jurisdiction and persons who are simply non-bailable for any one of several reasons. In fact, is anyone at all there only because they cannot afford a bail bond premium? The bail bond market place would indicate that this is pretty unlikely, because today’s bail providers adjust their pricing and payment options to meet the demand of their customer base. If a person in a local jail today has such community ties that someone will come forward on his behalf and make easy to meet bail premium arrangements, that inmate can have a bond. Not long ago The Texas Public Policy Foundation indicated that before assigning blame for jail population problems, thorough local studies need to be made to determine what the true reasons for overcrowding are. But to point the finger at the private sector bonding industry is premature at best and highly specious at worst.

None of this really matters though; unless State and County policy makers are prepared to hamstring the State’s criminal court judges’ ability to utilize bail as originally intended and thus preserve the principle of accountability within a state’s criminal justice system, all the while realizing that such “handcuffing” of the courts would likewise increase the financial burden on counties exponentially while growing the number of crime victims. Everything depends upon whether those policy makers would be ready to cast aside that timeless admonition: “Don’t change what works.”