Bail is an amount of money that a criminal defendant may be ordered to pay before being released from custody pending trial. Its purpose is to ensure a defendant’s return at subsequent trial proceedings. Bail is typically determined during a defendant’s first appearance in court. A judge or other court officer sets the amount and conditions of bail. The judge may release the defendant on his or her own recognizance or upon an unsecured appearance bond. Alternatively, the judge has discretion to release the defendant on bail subject to certain conditions, or to deny bail.
Although bail is mostly associated with criminal proceedings, bail may be granted in some civil cases to secure payment of a debt or to secure a performance of a civil duty. In criminal law parlance, a bail is granted on the basis of the circumstances and seriousness of the offense. Serious misdemeanor cases and felonies often require a bail determination. Bail can be sought by the accused person during the pre-trial period or pending execution of sentence. The question of bail also comes into play while an appeal of a conviction or sentence is pending.
Bail law in the U.S. is based on English law. The Sixth Amendment to the Constitution mandates that a suspect must “be informed of the nature and cause of the accusation” so as to enable the person to seek bail. However, there is no absolute right to bail. Initially, the Bail Reform Act of 1966 provided that a non-capital defendant is to be released on bail pending trial, unless the judicial officer determines that granting bail will not adequately assure the defendant’s appearance at trial.
The Bail Reform Act of 1984, codified at United States Code, Title 18, Sections 3141-3150 replaced the Bail Reform Act of 1966. The new Act provides for detention of the accused where necessary for the safety of the community. According to the Bail Reform Act of 1984, persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering are subject to detention without bail.
Bail may not be granted in the following circumstances:
- Where the defendant is undergoing a custodial sentence for another offence.
- Where the court finds that it is not feasible to obtain sufficient information,
- Where it is determined that continued custody is necessary for the defendant’s own safety and protection.
- Where the defendant has absconded or breached a bail.
- Where the defendant has been convicted, but the court is waiting for a report or inquiry, and such inquiry would be difficult to complete without keeping the defendant in custody.
In Hudson v. Parker, 156 U.S. 277, 285 (U.S. 1895), the court stated that the statutes of the United States have been framed upon the theory that a person accused of a crime shall not, until he has been finally adjudged guilty in the court of last resort, be compelled to undergo imprisonment or punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction and pending a writ of error.