Why Was the Bail System Introduced?

Bail was introduced into the criminal justice system for a few key reasons, ranging from overcrowded jail and holding facilities to the cost and expenses of holding an arrestee. There is, of course, also the ethical question of whether or not it’s fair to hold someone in custody for an unknown amount of time when they could very well be innocent, or found guilty of a minimal offense. All of these factors contributed to the creation of our current bail system. So, let’s examine these reasons a bit further.

Overcrowded Jails and Prisons

Not to say that overcrowing is anything new, or a characteristically American phenomenon. Jail and prison overcrowding is experienced around the globe, and these numbers are currently rising. This is in part contributed to a steady rise in the human population, with little being built to mitigate this overall exponential increase. It also has to do with drug criminalization, political opposition in authoritarian societies, and broken judicial systems. For the U.S., our main factors leading to overcrowded jails and prisons, are a product of the war on drugs, too many people going to jail for minimalist crimes, and a privatized prison system that monetizes on the incarceration of people, all too many for nonviolent, non-threatening crimes.

“Equating to 481 people incarcerated per 100,000 of the population, it comes as little surprise that overcrowding has become a serious problem in many U.S. prisons with 18 states reporting they were operating at over 100 percent capacity at the end of 2014.” –Niall McCarthy, Forbes 2018

The bail system was introduced in an effort to remedy this burgeoning issue. By allowing people to post bail, we lessen the number of people in jail, and therefore, lessen the burden on an overtaxed system. By keeping people from waiting out their sentencing date in a holding facility, we free them up to get back to their lives, their jobs, or even to school.

In the ruling of Brown v. Plata, the Supreme Court concluded that California’s correctional facilities violated prisoners’ Eighth Amendment rights. The Eighth Amendment of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment clearly shows that overcrowding prisons are unethical and unconstitutional practices by our judicial system. These unsavory conditions caused inmates to receive poor medical and mental health care, as well as inhumane living circumstances due to lack of resources and livable space.

Holding Conditions, Disruptions and Bail Cost

For many stuck in the uncomfortable and often stress-inducing process between being booked, and awaiting trial, securing bail is of utmost importance. After being booked, arrestees are often placed in overcrowded and stressful holding facilities that actually offer a lot less comfort and safety as normal jails or prisons. Often times, these holding cells don’t offer the same privacy or intimacy of normal jail cells- they can be large open rooms with hundreds of people all together awaiting their fate. These conditions are unsanitary, unsafe, and unnerving- many times these facilities leave overhead lighting on 24/7 and offer little creature comforts.

A large percentage of folks that find themselves in this situation do not possess the funds to post their own bail. The inability to post bail deeply affects certain demographics, such as single mothers, who have to find babysitters or family members to care for their children while they sit in jail. By working with a bail bonds agency, people who otherwise couldn’t afford to post their own bail now have the chance to get out pretrial. Returning to their lives, these arrestees are able to maintain their jobs and return to parenting etc.

In the past, there were really no bail restrictions that exist today, which limit the percentage bail bonds agencies can require in percentages, fees and interest on a bond amount. Now, bond agencies are not legally allowed to ask for any amount over 10% of the overall posted bail amount. This safeguards those stuck in an unfortunate situation and allows people of all backgrounds and financial circumstances to be released.

Due to the issues of overcrowding, disproportionately high costs, and stifling life disruptions, the bail bond industry was born.