Bail for people charged with criminal offenses has a long and varied history in the U.S., and we’re still wrestling with it today.

Before our independence we used the British 1275 Law of Westminster as our guidepost, pretty much leaving bail decisions to local sheriffs. Then after 1776, colonies set their own bail laws. Now our states have them inscribed in statutes.

They seldom satisfy everyone. What’s to be a bailable offense? Is it fair that a rich person can easily put up bail while a poor person sits in jail awaiting trial?

Hawaii allows bail except for murder or attempted murder and Class A and B felonies except for forgery and failure to render aid. You can pay bail money or sometimes just be released on your promise to show up for court, or by supervised release or with conditions such as wearing an ankle locator.

You won’t be released if there’s reason to believe you’ll flee. Or if you’re a community danger or might threaten a witness. Another red light is if you’ve been charged with ongoing criminal activity (the Miske case here) and are considered likely to keep it up during release.

That’s all pretty cut-and-dried and settled law. But where cash bail is permitted, there is not equal footing for all citizens. Yes, you can use a bail bondsman. But they generally charge 10%. Let’s say your bail is set at $100,000. You’d owe a bondsman $10,000. How many people can afford that? Chances are they’ll have to sit in prison awaiting trial.

States recently have been trying to figure out systems that are fair but don’t allow habitual criminals back on the streets. Ankle locators can keep them at home. But if a person is later found not guilty, then he’s been rather unjustly robbed of his freedom.

New York came up with a totally new plan just 2 years ago and it went into effect last year.

All persons there charged with misdemeanors or non-violent felonies are released with a Desk Appearance Ticket, unless charged with a sex offense, escape, or bail jumping. At arraignment, a judge will determine what release conditions will be imposed. Release without bail is mandatory for the following charges:

All misdemeanors and non-violent felonies but not for sex offenses, criminal contempt in a domestic violence matter, witness tampering or intimidation, terrorism-related charges, and certain offenses against children. Release is mandated on all drug charges except that of being a major trafficker.

Also warranting release: robbery in the second degree and burglary in the second degree.

Bail may be set if there is a showing that the defendant poses a risk of flight to avoid prosecution. But New York no longer has a public safety consideration when determining bail.

That would probably cause an uproar if we proposed that last one here.

But yes, a court should have leeway to set cash bail as an alternative. It should consider the individual’s financial situation in determining the bail amount.

I find it interesting that our remaking of bail laws has not been about equalizing treatment of rich people and poor people. It’s been caused by overcrowding in our prisons, especially since the Covid pandemic.

I suspect if we had prisons big enough there’d be no reform.

I’m sympathetic to those who remain unconvinced we should be releasing people facing drug charges. While not a gun or a knife, some drugs – such as fentanyl – are so deadly, the public may be put in danger. And drug dealers who aren’t caught with guns may still have access to weapons. That happened in New Jersey after the state enacted its own bail reforms.

Since 2014, New Jersey and Alaska have enacted reforms that have abolished cash bail for the majority of cases. These states now give defendants a supervised release or mandatory detention, with the conditions determined through a risk assessment.

But here’s the major concern in every state working through New York style reforms. Public safety would no longer be a consideration for setting bail. Some persons accused of robbery and burglary – both violent felonies – would be released without bail. They may indeed pose a risk to public safety. What if it was a string of burglaries or robberies? Might they commit the offense again?

And liberal bail reforms may erode the public’s confidence in the system. That was addressed in a recent episode of Blue Bloods on CBS. If a victim sees the perpetrator back on the street, will the victim feel safe? While an Order of Protection provides some level of assurance, in the end it is just a piece of paper. Without a judge determining what level of dangerousness a defendant may pose, laws passed by sympathetic legislators may be allowing the release of persons who will commit additional crimes.

The best roadmap to bail reform would seem to be taking proposed changes out to every neighborhood board and engaged community group for feedback, and maybe pushback. This should not be done through those poorly-attended hearings in the Legislature. Reforms won’t work unless a large state majority has bought into them. That probably means a constitutional and Revised Statutes amendment put on the ballot for a public vote.



Published by Bob Jones

Journalist since age 19. St. Petersburg Times, Noticias y Viajes in Madrid, Overseas Weekly in Frankfurt and Paris, the Louisville Courier- Journal, the Honolulu Advertiser, KGMB-TV, NBC News foreign correspondent in Africa and Southeast Asia, and MidWeek columnist. LL.B LaSalle University Law. 3 years in the U.S. Air Force. Covered: Biafran War in Nigeria (1968) Vietnam War (1969-73), Iraq in 1991. George Foster Peabody Award for distinguished journalism for reporting in China. 2 Emmys for documentaries. Married to journalist Denby Fawcett; one daughter. Brett Jones, foreign service officer, State Department.

One reply on “Who Gets It? Who Doesn’t? Is It Fair?”

  1. It’s not just bail in which public safety seems to get undervalued. It often seems to me that public safety is not given sufficient weight in sentencing.

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