The Importance of Bail

Today, bail has gotten a bad rap.  A really bad rap.  If something is wrong with the criminal justice system, it must be bail.  The reality is that bail plays an important role in our criminal justice system.  It is crucial and has been since our nation was founded.  It was so important that the founders felt it prudent to include a right to reasonable bail in the Bill of Rights.  Bail is inherently intertwined with a defendant’s right to innocence until proven guilty.  A person should have the right to be released on bail while preparing for their trial.  They should have the right to work and continue on in their daily life while awaiting their day in court.  Thus, we should have the right to be released on bail that is not excessive.  At the same time, we must balance that right with a victim’s right to have their day in court, to be heard and to be protected.  Bail is the balance between not allowing release and allowing release on a person’s own recognizance.  Bail ensures that people show up at court.  It eliminates a burden on taxpayers to track and monitor defendants – it also protects those defendants’ rights to remain innocent while awaiting trial.

There are protections in our system to prevent against inequities or injustice.  For instance, bail review hearings where all parties are able to be heard regarding the set bail amount ensure that bail is not excessive and that a defendant’s extenuating circumstances are taken into account.  At these hearings a judge reviews the information and can decide to lower bail or increase it.  A victim has the right to be heard as well.  All parties are fairly represented and a judge can take into account more than just the crime.  Undoubtedly, there are problems.  There are jurisdictions who are not affording a defendant their right to a bail hearing.  There are jurisdictions who are not allowing a person to appear in front of a judge until well after the 48-hour mark.  There is an underlying prejudice, but it is not in the setting of bail – it is in our criminal justice system itself.

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