Transcript Chapter Eleven Bail

Chapter Eleven:
Bail
The right to bail is established in the
Eighth Amendment’s clause of the
U.S. Constitution which states that,
“excessive bail shall not be required.”
However, those defendants accused
of a capital offense have
no right to bail.
Questions:
What is “excessive” bail?
What should the purpose of bail be?
When does bail setting occur?
Bail
Forms of bail include:
Bail is a guarantee that
upon release from
jail, the accused
promises to return to
court as needed.

Cash Bond

Property Bond

Release on Recognizance

Bail Bondsman
Bail and Inequities
versus
Bail and Crime
Conflicting Theories
Due Process
Crime Control
The purpose of bail is to
protect society; i.e.,
pretrial crimes and
preventive detention.
The purpose of bail
is to ensure pretrial
release and the
guarantee that the
defendant appears in
court, i.e.,
10 percent bail and
pre-trial services.
Preventive Detention
Preventive detention allows judges to hold
suspects without bail if they are accused of
committing a dangerous or violent crime and
locking them up if deemed necessary for
public safety.
Conflicting Federal Laws
Crime Control
Due Process
Bail Reform Act of
1984
Bail Reform Act of
1966
“danger to the
community
“pre-trial release”
Bail Reform Act of 1984

Federal defendants – accused of serious crimes.

No bail up to 90 days if convincing evidence that the defendant
will: 1) risk of flight; 2) obstruct justice or cause harm to either
the witness or juror; and, 3) the offense is one of violence or
punishable by life imprisonment or death. Also: there is a
presumption against pretrial release for major drug dealers.

Preventive detention is not a punishment, but a means to
curtail pretrial crime and maintain public safety.
Bail and Pretrial Release
Growth in U.S. Jail Population
Question
What was the importance of
the Supreme Court case
U.S. v. Salerno (1987)?
Key Developments Regarding Bail
Factors That Affect
Judicial Discretion and Bail Setting

Judges have unlimited legal discretion in setting bail.

Based on limited information about the defendant and
the evidence, the judge faces uncertainty in setting bail.

Judges face the risk of Type I errors and Type II errors.

Judges must consider jail resources – in the U.S.,
750,000 people are in jail on any given day, half of whom
are not convicted of any crime.
Question
What are the pros and cons of
pre-trial drug testing
at the arrest stage?
Shaping Bail Guidelines
Two Most Important Legal Factors:
Seriousness of the Crime
and
Prior Criminal Record
Question:
What is situational justice?
Should individual facets be considered?
Should demeanor be considered?
Questions
How common are pretrial crimes?
How effective are pretrial service programs?
What is meant when preventive detention is
referred to as having a “symbolic status?”