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GLOSSARY OF TERMS AND PHRASES RELATING TO BAIL AND THE PRETRIAL RELEASE OR DETENTION DECISION Copyright © 2015 by the Pretrial Justice Institute. All rights reserved. Gaithersburg, MD Updated July 2015 3 Introduction The complicated nature of various terms and usage that they seem correct even when they phrases relating to bail and pretrial release are misused. For example, the terms “pretrial” or detention can sometimes lead to confusion and “pretrial services” are sometimes used as and misuse of those terms. That, in turn, may short-hand nouns referring to pretrial services lead to unnecessary quibbling and distraction agencies or programs (e.g., “Pretrial wants to from fundamental issues in the administra- eliminate commercial bail bonding.”), instead tion of bail and pretrial justice. Some of this of their proper use as (1) a period of time, and confusion and misuse is quite understand- (2) the actual services provided by the pretrial able. For example, in his Dictionary of Modern services agency or program. Legal Usage, Bryan Garner describes the term “bail” as “a chameleon-hued legal term,” with These predominantly legal terms are difficult strikingly different meanings depending on its enough without any layer of confusion and overall use as either a noun or a verb.1 A term misuse. Accordingly, this glossary of terms and like “habeas corpus,” as another example, has phrases has been written to provide current little meaning to one not fully immersed in the definitions, in context, and with historical legal waters of the American system of justice. references as needed, to clarify a comprehen- How does one sum up a concept like habeas sive set of common terms relating to bail and corpus, when, as the online company Twitter the pretrial release and detention decision. said when explaining its own service in March The authors hope that the glossary will be of 2010, “it’s a whole thing?” used to find consensus on common terms and phrases to avoid needless distractions from the Misuse of terms can be caused by simple lack of important work of making the administration education. That “bail” is used primarily to refer of bail more effective. References to Black’s to amounts of money is likely due only to a lack Law Dictionary (or “Black’s”) are to the Ninth of education for not only the public and the Edition.2 press, but also for some criminal justice prac- titioners. Other terms are often so ingrained in GLOSSARY OF TERMS 1 Adversary System emphasis on this sometimes riveting recitation of “facts” and to the charge filed, to the exclu- Black’s calls it “[a] procedural system, such as sion of other relevant factors used to assess the Anglo American Legal System, involving risk of flight and to public safety. active and unhindered parties contesting with each other to put forth a case before an independent decision maker.” According to American Bar Association (“ABA”) Michael Asimow, “[t]he central precept of the Criminal Justice Standards adversary system is that the sharp clash of The American Bar Association is the 400,000- proofs presented by opposing lawyers, both plus member national association for the legal zealously representing the interests of their profession and those interested in the legal clients, generates the information upon which profession. In 1964, the ABA implemented its a neutral and passive decision maker can “Criminal Justice Standards Project,” which most justly resolve a dispute.”3 It is typically has created and updated best practice stan- contrasted with the inquisitorial system of dards on twenty-three areas in criminal justice. justice, in which the judge controls most of the The Third Edition of the ABA’s Standards pretrial and trial procedures, including framing on Pretrial Release (black letter standards the issues, supervising criminal investigations approved in 2002, commentary approved in and discovery, questioning and cross-exam- 2007) are based on empirically sound social ining witnesses, and summarizing evidence. science research, as well as on fundamental Understanding the adversary system’s impor- legal principles, and have been used by courts, tance at bail is critical, for initiation of adver- legislatures, scholars, and others interested in sary proceedings triggers certain rights, such best practices in the field of pretrial justice. as the right to counsel. In practice, judges comfortable operating in a system in which Appearance Bond they are to oversee two sides in the adversarial see Bail Bond clash of proofs often find that the typical bail hearing is overwhelmingly lopsided, many times operating with no defense counsel, and Appearance Rate instead proceeding with defendants who are see Court Appearance Rate unprepared to argue issues concerning their pretrial release. The adversary system presup- Arraignment poses somewhat equal adversarial opponents, but bail hearings often lack that equality. A criminal proceeding at which the defendant is read the charge or charges and asked to Affidavit enter a plea. The essence of the arraignment is the act of pleading (e.g., guilty, not guilty, no A voluntary declaration of facts written down contest) to the formal charge or charges, and and sworn to by the declarant before an officer although an arraignment may be continued or authorized to administer oaths (Black’s). postponed, its goal is to obtain the defendant’s Among other things, affidavits are drafted to plea. The term is sometimes incorrectly used obtain search warrants and to document an to mean the defendant’s “first appearance” officer’s probable cause for making a warrant- or “initial appearance,” but the arraignment less arrest. In the administration of bail, some needn’t be the first appearance. As correctly persons may be tempted to place a greater noted in Black’s and other sources, the law A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE 2 regarding arraignments varies from jurisdic- believe that money motivates human action, tion to jurisdiction, and is typically explained and in most state statutes, money amounts are by court rules or statutes governing those forfeited for failure to appear), to date money jurisdictions. has never been empirically related to it – that is, no studies have shown that money works as Arrest Warrant an added incentive to appear for court. Third, the purpose of bail itself has changed over the see Warrant past 100 years from reasonably assuring only court appearance to also reasonably assuring Bail public safety, and research has demonstrated In criminal law, bail is the process of releasing that money is in no way related to keeping a defendant from jail or other governmental people safe. Indeed, this notion is reflected in custody with conditions set to reasonably most state statutes, which routinely disallow assure public safety and court appearance. the forfeiture of money for breaches in public “Bail” is perhaps one of the most misused terms safety. Fourth, money bail does not reflect in the field, primarily because bail has grown the criminal justice trend, since the 1960s, from the process of delivering the defendant to to make use of own recognizance or personal someone else, who would personally stand in recognizance bonds with no secured financial for the accused if he or she did not appear for conditions. And finally, in most jurisdictions court, to presently being largely equated with monetary conditions of release have been sums of money. It is now clear that, whatever overshadowed by the numerous nonfinancial pure system of “standing in” for a particular conditions designed to further bail’s overall defendant to face the consequences of non- purpose to provide a process for release while appearance in court may have existed in the reasonably assuring court appearance and early Middle Ages, that system was quickly public safety. replaced with paying for that non-appearance first with goods (because standardized coin Garner has correctly noted the multiple defini- money remained relatively rare in Anglo Saxon tions of bail that have evolved over time, most Britain until the Eighth and Ninth Centu- of which presuppose some security in the form ries) and later money. The encroachment of of money.4 For example, besides being defined money into the process of bail has since been as the security agreed upon, bail was also once unrelenting. And, unfortunately to this day, defined as a person who acts as a surety for a the terms “money” and “bail” have also been debt, and was often used in sentences such as, joined in an unholy linguistic alliance. “The bail is supposed to have custody of the defendant.”5 However, because much has been This coupling of money and bail is troubling for learned over the last century about money at several reasons. First, while money bail may bail (including its deleterious effect on the have made sense in the Anglo Saxon criminal concept of pretrial justice), and because the justice system – comprised of monetary penal- very purpose of bail has also changed to include ties for nearly all bailable offenses – the logic notions of public safety in addition to court eroded once those monetary penalties were appearance (preceding a new era of release largely replaced with corporal punishment and on nonfinancial conditions), defining the term imprisonment. Second, while perhaps logi- “bail” as an amount of money, as many state cally related to court appearance (many people legislatures, criminal justice practitioners, GLOSSARY OF TERMS 3 newspapers, and members of the public do, is pledge or a promise, which can include release flawed. Thus, a new definition of the term is without money),10 have enacted statutory defi- warranted. nitions to recognize bail as something more than simply money. Moreover, some states, Bail as a process of release is the only defini- such as Alaska,11a Florida,11b Connecticut,11c tion that: (1) effectuates American notions of and Wisconsin,11d have constitutions explicitly liberty from even colonial times; (2) acknowl- incorporating the word “release” into their edges the rationales for state deviations from right to bail provisions.

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