Bail is the process by which criminal defendants secure their release while awaiting trial. It allows people who have been charged with a crime to be released from police custody. Bail can also refer to the sum of money that many defendants are required to provide as collateral for their appearance in court at a later date. Defendants who make good on their promise and appear in court at the appointed time will have their cash returned to them at the conclusion of their trial, but those who fail to appear in court will forfeit it.
Bail is a centuries-old legal practice and a topic the American Founders addressed as they structured the criminal justice system in the U.S. Constitution and Bill of Rights. It was originally developed as a method for coping with the protracted delays between when criminal defendants were apprehended and when trials could be arranged. In the days of itinerant judges who served multiple jurisdictions simultaneously, defendants might have to wait months or even years before a judge was available to hear their case. Keeping the accused in jail for such an extended period was not practical. Requiring collateral from a criminal suspect helped ensure that he would appear at trial and would provide compensation for the victim of the crime if he absconded.
The practice operates with similar justification today. The Michigan legal system relies on a money bail process to help ensure that criminal defendants — people who have been formally charged with a crime — appear in court for their trial. Bail is generally available to all criminal defendants except in a few limited circumstances. By obtaining a promise to appear and requiring cash collateral from defendants, the cash bail system aims to create a strong incentive for defendants to make themselves available for trial. Defendants who are released on bail but fail to appear for trial not only forfeit their bail money, but they also become subject to arrest and will be detained in jail for the duration of their trial.[*]
In recent years, the criminal justice system has drawn criticism from across the political spectrum because cash bail has come to be imposed on so many criminal defendants. Data increasingly indicate that releasing a defendant pretrial has a significant impact on his long-term prospects. It affects the defendant’s ability to retain his housing, employment, and child custody, the probability that he will go on to commit another crime and even the likelihood of a favorable legal outcome in his case.
Research has also revealed that the majority of jail inmates are legally innocent but are being detained because they cannot afford to bail out before and during their trial.[†] This imposes large costs on local governments but provides no clear public safety benefit. Finally and most importantly, states with misguided pretrial release policies may infringe on defendants’ liberty interests, opening themselves up to litigation and the risk of an injustice. For these reasons, stakeholders and practitioners in Michigan should work to understand the purpose of bail and implement the best pretrial practices for respecting individual rights and public resources.
[*] Individuals may have new bail granted, or the original bail reinstated, depending on the judge’s discretion.
[†] Nationally, about 60 percent of jail inmates are awaiting court action rather than serving time on a conviction. This has been the case since 2005. Todd D. Minton and Zhen Zeng, “Jail Inmates in 2015” (U.S. Department of Justice, Dec. 2016), https://perma.cc/6LMU-W2UM.