The History of Bail and Pretrial Release

1 The hisTory of Bail and PreTrial release septemBer 23, 2010 TimoThy r. schnacke, michael r. Jones, claire m. B. Brooker the History of Bail And 1 Pretrial release1 A. IntroductIon1 cases alleging abuses in the pretrial release or detention decision-making process. These abus- While the notion of bail has been traced to an- es were originally often linked to the inability to cient Rome,2 the American understanding of bail predict trial outcome, and later to the inability is derived from 1,000-year-old English roots. A to adequately predict court appearance and the study of this “modern” history of bail reveals two commission of new crimes. This, in turn, led to fundamental themes. First, as noted in June Car- an over-reliance on judicial discretion to grant or bone’s comprehensive study of the topic, “[b]ail deny a bail bond and the fixing of some money [originally] reflected the judicial officer’s predic- amount (or other condition of pretrial release) tion of trial outcome.”3 In fact, bail bond decisions that presumably helped mitigate a defendant’s are all about prediction, albeit today about the pretrial misconduct. Accordingly, the follow- prediction of a defendant’s probability of making ing history of bail suggests that as our ability to all court appearances and not committing any predict a defendant’s pretrial conduct becomes new crimes. The science of accurately predicting more accurate, our need for reforming how bail a defendant’s pretrial conduct, and misconduct, is administered will initially be great, and then has only emerged over the past few decades, should diminish over time. and it continues to improve. Second, the concept of using bail bonds as a means to avoid pretrial imprisonment historically arose from a series of B. Anglo-SAxon rootS To understand the bail system in medieval Eng- 1 While much of the text in this section is attributed to its land, one must first understand the system of source by footnote, any un-attributed statements were criminal laws and penalties in place at that time. derived primarily from the following sources: F. Pollock & F. The Anglo-Saxon legal process was created to Maitland, The History of English Law (2d Ed. 1898) [hereinafter Pollock & Maitland]; Caleb Foote, The Coming Consti- provide an alternative to blood feuds to avenge tutional Crisis in Bail: I and II, 113 Univ. Pa. L. Rev. 959, 1125 wrongs, which often led to wars. As Anglo-Saxon (1965) [hereinafter Foote]; Wayne H. Thomas, Jr., Bail Reform law developed, wrongs once settled by feuds (or in America (Univ. CA Press 1976) [hereinafter Thomas]; by outlawry or “hue and cry,” both processes al- Gerald P. Monks, History of Bail (1982); June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic lowing the public to hunt down and deliver sum- Principles in the Administration of Bail, 34 Syracuse L. Rev. mary justice to offenders) were settled through 517 (1983) [hereinafter Carbone]; Stevens H. Clarke, Pretrial a system of “bots,” or payments designed to Release: Concepts, Issues, and Strategies for Improvement, 1 compensate grievances.4 Essentially, crimes Res. in Corrections, Issue 3:1; Evie Lotze, John Clark, D. Alan Henry, & Jolanta Juszkiewicz, The Pretrial Services Refer- were private affairs (unlike our current system ence Book, Pretrial Servs. Res. Ctr. (Dec. 1999) [hereinafter of prosecuting in the name of the state) and Lotze, et al.]; Marie VanNostrand, Legal and Evidence Based suits brought by persons against other persons Practices: Application of Legal Principles, Laws, and Research to the Field of Pretrial Services (Crime & Just. Inst., Nat’l Inst. of typically sought remuneration as the criminal Corrections (2007)) [hereinafter VanNostrand]; and material penalty. In a relatively small number of cases, found on the Pretrial Justice Institute’s website, at http:// persons who were considered to be a danger to www.pretrial.org/. Carbone, in turn, cites to E. De Haas, society (“false accusers,” “persons of evil repute,” Antiquities of Bail (1940), as well as to Pollock & Maitland for additional “thorough studies on the origins of bail.” All links and “habitual criminals,”) along with persons to websites are current to September 23, 2010. caught in the act of a crime or the process of 2 See Lotze, et al., supra note 1, at 2 n. 3. 3 Carbone, supra note 1, at 574. 4 Id. at 519-20. The hisTory of Bail and PreTrial release 2 escaping, were either mutilated or summarily ex- upon conviction, the system accounted for the ecuted.5 All others were presumably considered seriousness of the crime and fulfilled the debt to be “safe,” so the issue of a defendant’s poten- owed if the accused did not appear for trial. All tial danger to the community if released was not prisoners facing penalties payable by fine were a primary concern. bondable, and the bail bond was perfectly linked to the outcome of trial – money for money. Nevertheless, the Anglo-Saxons were concerned that the accused might flee to avoid paying the c. the normAn conqueSt to bot, or penalty, to the injured (as well as a “wite,” 1700 or payment to the king). Prisons were “costly and The system became significantly more complex troublesome,” so an arrestee was usually “replev- after the Norman Conquest, beginning in 1066: ied (replegiatus) or mainprised (manucaptus),” that is, “he was set free so soon as some sureties In the period following the Norman inva- (plegii) undertook (manuceperunt) or became sion, criminal justice gradually became an 6 bound for his appearance in court.” Thus, a affair of the state. Criminal process could be system was created in which the defendant was initiated by the suspicions of a presentment required to find a surety who would provide a jury as well as the sworn statements of the pledge to guarantee both the appearance of the aggrieved. Capital and other forms of corpo- accused in court and payment of the bot upon ral punishment replaced money fines for all conviction. The amount or substantive worth but the least serious offenses, and the delays of that pledge, called “bail” (akin to a modern between accusation and trial lengthened money bail bond), was identical to the amount or as itinerant royal justices administered local substantive worth of the penalty. Thus, if an ac- justice.8 cused were to flee, the responsible surety would pay the entire amount to the private accuser, and Summary mutilations and executions were the matter was done. gradually phased out, but the overall use of corporal punishment increased, giving many According to Carbone, “[t]he Anglo-Saxon bail offenders a greater incentive to flee. System process was perhaps the last entirely rational delays also caused many persons to languish 7 application of bail.” Because the amount of the in primitive jails, and the un-checked discre- pledge was identical to the amount of the fine tion given to judges and magistrates to release defendants led to instances of corruption and 5 See id. at 520-521, and accompanying notes. abuse. Moreover, as the penalties changed, 6 Pollock & Maitland, supra note 1, at 584. Indeed, even ideas about which persons should be bondable those unable to pay the “bot” were typically handed over also shifted. The first to lose any right to bail to the victim for either execution or enslavement. Carbone, supra note 1, at 521 n. 18. If they fled, they were declared whatsoever were persons accused of homicide, “outlaws,” subject to immediate justice from whoever followed by persons accused of “forest offenses” tracked them down. Apparently, however, certain offenses (i.e., violating the royal forests), and finally a were considered to be “absolutely irreplevisable,” requiring some form of prison to house the offenders. See Pollock & catch-all discretionary category of persons ac- Maitland, supra note 1, at 584-85. 7 Carbone, supra note 1, at 520. 8 Id. at 521 (footnotes omitted). a PuBlicaTion of The PreTrial jusTice insTiTuTe 3 cused “of any other retto [wrong] for which ac- lapping and conflicting concerns of the statute’s cording to English custom he is not replevisable criteria, each criterion can be reduced to a simple [bailable].”9 standard: the seriousness of the offense offset by the likelihood of acquittal.”11 Indeed, this stan- In medieval England, magistrates rode a circuit dard governed English bail bond determinations from county (shire) to county to handle cases. for the next five centuries. The shire’s reeve (now known as the sheriff) was given the duty of holding individuals accused During that 500-year period, Parliament occa- of crimes until the magistrate arrived. Because sionally passed legislation defining the bailability of the broad discretion given to these sheriffs of crimes not mentioned in the Statute of West- to hold persons pretrial, bail administration minster. Mostly, however, Parliament focused on varied from county to county, and instances of adding safeguards to the bail process to protect abuse became more frequent. Indeed, “[b]ail law persons from political abuse and local corrup- developed in the twelfth and thirteenth centu- tion. For example, due to the vague nature of the ries as part of an assertion of royal control over terms “ill fame” and “light suspicion,” as applied the authority of the sheriffs,” which had grown by local justices of the peace, in 1486 Parliament increasingly corrupt.10 required the approval of two justices, rather than one, to release a prisoner and to certify the Following exposure of widespread abuse in the bailment at the next judicial session. In 1554, bail bond-setting process, Parliament passed the Parliament required that the bail bond decision first Statute of Westminster, which assembled be made in open session, that both justices be and codified 51 existing laws – many originat- present, and that the evidence that was weighed ing from the Magna Carta – and which covered, be recorded in writing, essentially introducing among other things, bail.

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