Using Bail To Get Out Of Jail – What A Civil Idea

By Aazdak Alisimo

When you really think about it, the concept of bail is a pretty civilized idea. If you’ve been arrested for a crime, buying your freedom is probably a small price to pay.

The story of bail could be said to have originated in medieval England where the local sheriff had the basic right to hold an accused person or to release him prior to trial. Apparently, this system was much abused with the sheriff deciding those who could pay him the most deserved to wait for their trials at home, and the ones unable to pay would wait in the jail. As early as 1275, laws were enacted to define what offenses were “bail offences”, and which were not.

The problem came to a head in the 17th century. The King of England, Charles I, decided he needed some loans from his nobles. Those that refused to make the loans were imprisoned. Apparently, the idea was that the nobles would rot in jail while the King worked out exactly what offense they had committed and arranged a trial. This process could have been extended forever. The English Parliament got involved and passed the Habeas Corpus Act of 1679 that said that an Englishman could not be held without a chance to post some sort of surety bond unless accused of a heinous crime or some other justifiable circumstance.

Ten years, later, the English Bill of Rights made this a basic part of English law. People were guaranteed the right to be free from excessive and unreasonable bail that was designed to hold them in jail unfairly before an actual trial or sentence. This became the basis of the 8th Amendment in the United States Bill of Rights. The concept of Habeas Corpus was established. It is based on the concept that no man is guilty until proven so in a court of law, and so, does not deserve to be imprisoned until a trial has decreed a sentence.

Bail became the way to insure this right, and it could not be excessive or unfair. Yet, on the other hand, although people are innocent until proven guilty, some of them are guilty and will eventually be proven so. The bail system had to insure against the release of criminals who would only flee and either escape or be recaptured at great expense.

In the United States, the major issues that have been addressed by the various changes in the bail laws have been of the danger of released accused fleeing or, worse, committing additional crimes. The idea that certain people pose a danger to the community and should be denied bail is at the heart of the current United States Code regarding bail. This determination demands a judicial decision. The question of the rights of the accused versus the safety of the community underlie all debate on bail laws.

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