Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen in the Criminal Justice System

Abstract

The decision to grant bail is the first contact that a judge has with a defendant. If a defendant is unable to pay the set bail amount, this inability affects nearly every aspect of the defendant’s case from beginning to end. Despite attempts to ensure insolvency does not solely determine pretrial detention, the current bail system, in many cases, ensures just that. Special interest groups, specifically the bail bond industry, oppose any reform efforts that aim to decrease the use of money in the administration of bail. Defendants unable to afford a bail bondsman can spend weeks, months, and sometimes years detained while awaiting their day in court. Law and public policy compels courts to secure bail only to the extent that it will guarantee a defendant’s appearance in court. This Note argues that in order to accomplish this, two important changes must occur. First, commercial bail bonds should be eliminated in favor of a system in which cash bail is not the default method of securing pretrial release. Second, all states should establish pretrial services agencies that aid courts in making bail determinations.

Keywords: bail, criminal justice