THE NECESSITY OF BAIL REFORMhy ROBERTT SIGLERCriminal Ju.docx

THE NECESSITY OF BAIL REFORM
hy ROBERTT SIGLER
Criminal Justice Pmgnim
University of Alabama
. Alabama 35401
aod
WILLIAM A. FORMBY
Criminal JuMicc Prugnim
University of Alubumu
Tuscakxtsa. Alabama 35401
ABSTRACT
The administration of bail in the United States is a process
which has a tendency to be
misimderstood and often misused by the general public and
pructiiioners ofthe criminal justice
system. It ts i'enerailx thouiiht thut the hnil process prevents
those accused from jleein^i from
justice. Additionally, it is pre.sumeJ thai bail may be used for
the purpose of preventive detention.
that is. to protect the community from the release of dangerous
persons.
Though the original purpose of bail was to insure ihe accused's
appearance in court, this
being the only legitimate use of bail today, we contend that it

does not .satisfy this purpose. The
primary result of the bail process is the incarceration of
indigent and inexperienced offenders.
Not only does this proce.ss fail to insure a released offender's
appearance in court, it is actually an
impediment to justice.
The use of ball for the purpose of preventive detention, in
essence, constitutes a misuse ofthe
hail process since the purpose of bail is simply to insure that the
accused will appear for trial. In
fact, iu many cases we find the majority of those not able to
make bail are the poor while serious
offenders are released on bail.
Both of these aspects should be viewed in light of their apparent
failure to achieve their goals,
from the reformist's standpoint. If a process is not meeting its
goals, then changes are in order.
Bail and (he administration of hail rcrnrm packages have
become one of the most controversial
issues in the administration of justice today. In addition lo
pressures by special interest groups such as
bondsmen and law enforcement agencies, the hidden purpose of
bail tends lo produce considerable
confusion in this heavily debated topic.
The use ot" bail from antiquily has served to guarantee the
appearance of the accused al trial. In
earliest times if the accused failed to appear, the person who
supported his release would have to take ihe
1

The Necessity oJ Boil Reform — Robert T. William A. I'ormby
place of the accused. This bail process, as was the case wilh
many other early English legal pn,>cesses,
was designed to serve the affluent and ruling class. Rather than
forfeit the person, the supporter forieited
property or money when the accused failed to appear at his trial
(Freed & Wald, 1964). Bail was
designed only to insure thai the accused would appear for trial
without the necessity of physical
detention. This purpose is set out by the Eighth Amendment
ofthe Constitution in that "Excessive bail
shall not be required . , ..'" and has been upheld by the Supreme
Court in holding thai any bail set higher
than will reasonably assure an accused's appearance in court is
excessive (Stack v. Boyle, 1951).
Recent concerns, however, have tended to focus on the danger
posed to society hy the release of
relatively dangerous offenders. We debate the need to protect
the public as opposed to the need to protect
the rights of the individual. We argue that bail accomplishes
neither of these objectives. First, bail does
notoperatesuch that it detains only those who would tlee the
jurisdiction of the court. Second, not only
is the detention of the accused before the trial to protect the
public unjustified by law and legal
philosophy, it is also ineffective. Bail does not simply detain
those who are dangerous and likely to flee
and release those who are relatively safe and likely to make
their appearance in coun.
Bail today has little chance of being related to the risk of flight
hy the accused. When a judicial
officer sets hail, especially in large cities, his knowledge is

usually limited to only ihe nature of the
offense. The amount of bail is usually based on the charge
according to a schedule of bail amounts which
increase as the severity ofthe charge increases (Ryan, 1967). It
is assumed that as the offense increases
in severity, the likelihood of flight increases, therefore the bail
must be larger. This assumption,
however, is open to challenge.
Ryan argues that forteiture is not affected by the deterrent
nature of bail. First, those who have
utilized the services of a bondsman lose nothing when they tlee.
Only the bondsman loses, and in many
instances the court chooses not to forfeit the bond incaseof non
appearance when a bonding company is
involved. If the defendant is wealthy, then it is likely that bond
forfeiture would not he a serious
consideration except in extreme cases such as the Patty Hearst
bond. If the accused is a professional
criminal, he probably has reserve funds for attorney fees and
baik therefore, bond forfeitures become a
WILLIAM A. FORMBY
Wittiam A. Formby is currently on the faculty of the Criminal
Justice Program at the
University of Alabama, main campus at Tuscaloosa. He received
the B .S. in Social Welfare and
ihe M.S. in CriminalJustice at ihe University of Alabama. He is
also a doctoral student at the
Vniversiiy, majoring in Administraiion of Higher Education.
Mr. Formby is a former police officer and a consultant for the
Birmhinhuni Police
Department. He is also heavily involved in curriculum
development and community

services for the Criminal Justice Program. Mr. Formby has
published several articles
in professional journals.
ROBERT T. SIGLER
Dr. Robert T. Sifiler. is a member of the faculty of the Criminal
Justice Program at the
University of Alabama. He received his doctorate at the
University of Missouri Columbia in
Sociology-Social Psychology. He is presently involved with
Volunteerism in Criminal Justice
through the newly formed National Criminal Justice Volunteer
Resource Ser'ice which iinlut
the University of Alalnima with VIP/NCCD focusmg on
curriculum expansion in criminal
justice in the volunteer area. Other areas of interest are
delinquency, eorrections and treatment
strategies.
CriminalJusiice Review
cost of doing business. We suggest thai, in most cases, the bond
itself has little to do with whether an
accused person will appear in coun or chooses to fiee.
The primary relationship between a person being released on
bail or detained while awaiting trial has
been found to be economic status of the accused in several
studies (Hawthorne, 1970, Levin. 1967;
Ryan. 1967, 1970). This does not mean to say that poor people
cannoi raise sufficient funds to be
relea.sed on a high bail. In fact, many ofthe people held for
failure to provide bail are minor offenders

who could be released for a relatively low bail. Studies
conducted in New York and Washington. D.C.
indicate that many oi tho.sc detained were held on relatively
small bails. In New York 25''/c of those held
could not raise $25 which was the bonding lee (5%) on a $500
bond. In Washington. D.C. 17% of those
held were held on bonds ot %51M) or less. When the amount of
the bond was doubled, the figures for
Washington. D.C. becatiic 40';̂ while thc percentage dctaiticd
in New York lor Icvs than a S1500 bond
was 45%. These conditions appear typical except in those areas
which operate release on personal
recognizance or other bail reform progratiis. 1
A recent study conducted by the University of North Carolina
found that the highest arrest and
forfeiture rates occurred in those categories of bonding that rely
primarily on thc threat of financial loss.
Defendants who participated in a pre-trial release program had
the lowest failure to appear and rearrest
rates (Institute of Government. UNC, 1975).
It can be argued that the primary product of this use of bail is
the denial of the right to a fair and
equitable disposition of coun proceedingstotho.se persons
detained only beeause they lack the financial
resourees to obtain release on bail. This detention occurs during
the most critical peritxi in the legal
proceedings, the period of time between arrest and trial. The
ability of the accused lo work with his
attorney, develop evidence, locate witnesses, adequately fmance
his case, maintain psychological
stability, and negotiate a non-judicial settlement with witnesses
is clearly impaired when the accused is
detained (Sims. 1976). In essence, not only is the accused
deprived of his libcny prior to being convicted

of a crime, but he is also handicapped in his ability to conduct a
proper defense. Addilionally. anaccu.sed
person who is detained has diftlculty in demonstrating that he is
a good risk under supervision, thus
hampering his ability to receive probation. Several studies have
indicated that those who are released
while awaiting trial tend to receive lighter sentences than those
who are detained during this period
(Friedland. 1963; President's Crime Conitiiission. 1967), The
accused who is released pending trial can
demonstrate positive family relationships, the ability to suppon
himself economically, and the ability lo
lead a positive life. These factors would probably have a
significant influence on the application of
judicial discretion. Thus, the accused who is detained before
trial is denied a fair and equitable
disposition through denial of the opponunity to demonstrate
these abilities.
It appears likely then that the use of bail does not adequately
operate to insure appearance in coun.
Of those released prior to trial, the defendants who are released
on bail, have the highest rearrest and
forfeiture rates. Those who are detained cannot develop an
adequate defense nor can they demonstrate
their ability to adjust adequately to community life. Many
accused are detained for relatively minor
offenses and low bonds ($25-.S75 bondsman fee). Thus the
primary accomplishment ofthe bail system is
the denial of fair and equitable trial and dispositions to the
poor.
We have also suggested that the detention of an accused before
trial in order to protect the
community is not only unjustified by law and legal philosophy,
it is also ineffective. Bail does not detain

those who are dangerous and release those who are sate.
Our legal philosophy and case law indicate that a person is
innocent until proven guilty by conviction
in a court of law. Punishment cannot legally occur prior to
conviction; therefore, a person cannot be
The Necessity of Bail Reform — Robert T. Sifjler A William A.
Formby
detained prior to his trial for the purpose of punishment. As
previously stated, the Eighth Amendment
makes reference to bail; however, this is the only place in the
Constitution which does recognize bail. By
ihe same frame of reference, the Fifth Amendment prevents the
deprivation of life, liberty, or property
without due process of law. While some scholars as.sen that the
Eighth Amendment reference to bail
requres not only a reasonable bail, but also that bail be set for
all offenders (Kaplan, 1973). others
contend that the Eighth Amendment does not confer an absolute
right lo bail (Ervin. 1971). In any event.
the legal purpose of arrest and pre-trial detention is to assure
that the accused will be present for trial
when bail will not guarantee their appearance. Thus,
wesuggestthatallof those who will appear for trial
should be released either by bail, property bond, release on
recognizance, or release to a reliable citizen.
Under such circumstances the detention of any person nol
convicted of a crime or for any reason other
than to assure his appearance at his trial is inappropriate.
In practice, however, ihe criminal justice system may detain
accused defendants to prevent further

criminal activity, to punish (denial of privilege), and to
facilitate investigation (Kalmanoff. 1976). We
have begun to assume thut one purpose of pre-trial detention is
to incarcerate the dangerous criminal by
refusing bond orsettingu very high bond, thus protecting society
from his future illegal behavior. While
the need to protect society should not be an issue at this point
because of potential legal ramifications,
this may be changed at some future date by virtue of public
pressure. When this time arrives, a decision
will have to be made as to whether our pre.sent bail system is
adequate to protect society from potentially
dangerous offenders. Attempts to develop a preventive detention
system have had less than an
overwhelming success. In March of 1972 a study was conducted
to assess the effects of a preventive
detention act passed by Congress in 1970 for the District of
Columbia. Out of 6000 accused felons the
prosecutors attempted to use the act in only 20 instances. Of
these 20 only 10 were granted by lower
courts, and fiveof these attempts were over-turned on appeal
(Kaplan. 1973). Thus, we find that, in the
law's attempt to define dangerousness. the ambiguities of the
concept defeat even the United States
Congress. Must we assume then that a judicial officer's insight,
based usually only on the charges
against the accused, is greater? Here we contend that it is not.
We again assert that income is the primary basis for
determining release on bail, not dangerousness.
We have discussed the observed relationship between bail and
income and have suggested that the
affluent obtain release. Regardless of a reasonable bail, the
affluent will u.sually be able to post the bond
with ease by the use of property bond.
Thusinspiteofadangerousact the affluent would stiil he able to

obtain release. Another group who tend to make bail are
professional criminals. These professionals
will place money in reserve funds for bail and attorney tees. 1 U
this is in fact the case, then it will be the
indigent and minor offender who flnds himself in jail awaiting
trial.
We recently collected data which tends to support our argument.
In this study we interviewed all
inmates in city and county jails in Jefferson County
(Birmingham, Alabama) (Sigler. 1976). Every
income variable indicated that jail inmates came from poor
families. Thirty-seven percent ol the family
incomes and 39% of personal incomes are less than S60 weekly,
and 59% reptiited incomes below $100
weekly.
W'hen the past records of those detained were examined, we
found that over MWt had heen
previously arrested for nothing more severe Ihan a
misdemeanor. !n terms of ihe otlcnse they were
presently being held tor. 70% of those beingheldinthecity jail
were being held for drunkenness (SC f̂)
and traffic offenses (20*;̂ ). The county jail figures for these
offenses were much smaller wiih an overall
percentage of 2O'7f. These figures are somewhat misleading in
thut both pre-trial and sentenced
offenders are included in these figures. However, one-half of
the county inmaies were pre-trial.
Stronger support can be found in another aspect of this study. In
an attempt to chart intake flow we
traced the careers of all offenders brought to the county jail on
a randomly selected day. Twenty-four

Criminal Justice Review
men were admitled at the main division. Of these. 5 were
released on bond within three days with 10
bein^ released within hours. Ot those released on bond, tour
were arrested for drinking or drug related
ottenses. six were arrested for minor misdemeanors such as
insutfieient funds, one was arrested lor
burglary, three for gambling and two for assault with a weapon
and assault with intent to commit
murder. Four ol those released on bond were convicted and
sentenced to county jails. One person was a
returned parole violator and two others were convicted of minor
offenses, paid their fines and were
released. The only person who did not make bund was arrested
(or carnal knowledge of a minor. While
the facts ot these cases are not known, it is safe to assume that
someof those who were retea.sed were as
dangerous as those who were kept.
A similar pattern was observed at the subdivision. Of the 16
people admitted, all but three were
released within three days on bond. Of the three that could not
make bond, one was released on his own
recognizance. Of the two thatwereheld.one was charged with
assault with intent to commit murder and
the other for grand larceny. Of those released on bond, one was
charg«l with assault with intent to
comtiiit murder, one with assault with inteni to rape, one with
assault and battery, one for robbery, one
with being a fugitive from justice, three with grand larceny, and
seven with public drunkenness or other
misdemeanors. Again, manyof ihose released were as dangerous
as those who were detained. It should
be remembered that the county operates a pre-trial division

program which facilitates the release of mild
low income offenders.
Legal philosophy and case law have indicated that a person
cannot be subjected to excessively high
bail except to insure his appearance in court. This does not
imply consent to utilize bail as a preventive or
punitive measure. While there is no speciHc legal support for or
against preventive detention, there is a
trend toward establishing this concept to protect society from
dangerous offenders. However, it is clear
that the present bail system does not meet this ohjective.
Therefore, the detention ofan accused before
trial, for any reason other than to insure his appearance in court,
is unjustified legally and ineffective as a
protective device.
A system that detains the poor and not the absconder and
detains some minor ofenders while
releasing some dangerous offenders is surely in need of refonn.
However, betbre reform can be
discussed, we must decide what bail is suppose to accomplish.
If bail processes are to insure
appearance for trial and nothing more, then a number of
programs appear to be more efficient than the
present bail system.
Detaining a person is expensive in both direct eosts, such as the
actual physical cost of maintaining a
person in jail, and indirect cost, such as loss of income and
family support. This being the case, it would
seem more efficient to handle minor offenders (those cases
which tend to result in small and moderate
fines) with a summons process. If an accused failed to appear,
the loss would probably be less than the
expense of his detention. Similarly, it would cost no more to

arrest and detain the accused after failing to
appear than would have been the case had the arrest followed
the report of the offense.
For minor offenses w hich carry the possibility of incarceration
for more than 30 days, a screening for
release could occur with the goal being release of those who
will appear in court, which, lor this group,
should include almost everyone. A man with a job, a regular
residence, or a family is nol likely to flee
when the penalty is light. Likewise, this same man probably
will not compromise a friend who
guarantees his appearance in court. Many felons could also be
released with no fear of e.scape. A man
with a home, family, and a job will hope forleniency and remain
lo face trial.
If it were necessary to take steps to insure the accused's
appearanee. then the bond could be set
according to the affluence ofthe defendant. A S1000 bond might
he more than is necessary to insure the
appearance of the poor, and at the same lime he relatively
unimportant to the affluent. In addition.
The Necessity of Bail Reform — Robert T. Sigler <£ Wiliiam
A. Formby
failure*to appear could be made a serious offense in its own
right, as is the case w ith the 1966 Federal
Bail Reform Act. This act provides for penalties,
intheeventofafailure to appear, based on the severity
of the offense for which the person was arrested (Public Law
89-465). Alternatives such as the use of
summons, release on recognizance, release to a sponsor, release

to supervision and strict penalties for
failing to appear would permit the release of the majority of our
pre-trial detainees with little risk of
escape.
If we are attempting to develop a system to both insure
appearances at trial and to protect s(xieiy
from dangerous offenders, then many of the same procedures
can be used. In addition to consideration
ofthe likelihood to appear, we would also have to consider the
likelihood of additional criminal acts and
the potential severity ofthe criminal acts.
The first criteria to be considered should be the seriousness of
the present offense. If the offense is
minor, then strong standards for release would be inappropriate
regardless of the past history. Thus, for
minor offenses the release criteria would be similar. The
difference would appear when felonies are
processed. In these cases past histor>' would be an imponant
factor, both in terms of frequency and
severity. As the history and current offense became more
severe, then release would become more
difficult to obtain.
In addition to increasing the severity of penalties for failure to
appear, bonds which were posted
could be forfeited on conviction for an offense committed while
released on bond. This would increase
the cost of committing criminal acts for the offender and
provide funds which could be used to
compensate the victim.
SUMMARY
The present system ot bail achieves neither its formal objective,

insuring that accused offenders will
appear for trial, nor its informal objective, protecting society
from dangerous offenders. The primary
result is the detention of the indigent and relatively
inexperienced offender. At a minimun the bail
system must be revised so that tho.se who will voluntarily come
to trial at the appointed time are released
regardless of their economic status, while steps are taken to
reduce the incidence of failure to appear
regardless of financial resources. If we decide to begin
detention of the relatively dangerous, then
similar goals are to be developed. Those who are not dangerous
should be released and the dangerous
should be detained without consideration of financial resources.
Reference Note
See American Bar Associalion project on minimum standards
for criminal juslice. StantUtrds relaiing to prethal release.
Washington, D,C,: American Bar AssiKiation. 1968; tJ.S.
Presidenl's Crime Commission on t-aw Enfurcemcnl and
ChminaJ
Juslice, Corrections and the couns. Challenge o/crimein a free
society. 1967; and Hoskins. J. A. Tinkcnng with ihe Califomiu
ba.i system. CalifornitiLuvf Review, 96S. 45. 1165.
References
Ervin. S J . Prevention. Chieago: Chicago tJrban Research
Corp., 1971.
Freed. D,J. & Wald. ?.M. Bail in the UniiedStates. Wiishingion.
D . C : National Conference on Bail and Criminal Justice. 1964,

Criminal Juatict Review
Friedland. M. Detention before trial inToronto's Magistrates
Court. Toronto: University of Toronio Press, I96S.
Hawthorne, i. & McCully. M. Rclca.sconrea>gnizanvc in
Ka!ama/oo County. Michigan State Bar Journai. 1970. 49. 33.
Kaltnanot'f, A. CriminalJustice: Enforcement and
adinmistratian. Boston: Littic Brtiwn. 1976.
Kaplan. J. CriminalJustice: Introductory coses and materials.
Mineola. New York: Foundation Press, 1973.
Levin. G.S. San Francisco bail project. American Bar
Association Journal. l%7,55.
Public Law. 89-t65. 89th Congress s 1357. 80 Stst. 314. s.s.
3150.
Ryan. J.V. Lasi days of baiLyu«r/w/tf/CWmi/ia/L*iw, 1967,5«.
543-544.
Sigier. R. Evaluation of Jefferson County detention needs.
Tuscaloosa: University ol' Alabama Press. 1976.
Sims. S. Bail Bonding. Unpublished manuscript. Uni-ersity of
Alat)ama. 1976.
Stack V. Boyle, 342 U.S. I < 1951).
The effectivenes.'! of bail systems: An analysis of failure to
appear in court and reurrest while on hail. University of North
Carolina. Chapei Hill. North Carolina: Institute otGuvcmmcni.
1975.

Footnote
1. Over the years we have interviewed a number of otfcnders.
Bail and attorney fees are repeatedly mentioned as a neces&aiy
pan
of a successful criminal career.

THE NECESSITY OF BAIL REFORMhy ROBERTT SIGLERCriminal Ju.docx

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THE NECESSITY OF BAIL REFORMhy ROBERTT SIGLERCriminal Ju.docx