AskDefine | Define bail

Dictionary Definition

bail

Noun

1 (criminal law) money that must be forfeited by the bondsman if an accused person fails to appear in court for trial; "the judge set bail at $10,000"; "a $10,000 bond was furnished by an alderman" [syn: bail bond, bond]
2 the legal system that allows an accused person to be temporarily released from custody (usually on condition that a sum of money guarantees their appearance at trial); "he is out on bail"

Verb

1 release after a security has been paid
2 deliver something in trust to somebody for a special purpose and for a limited period
3 secure the release of (someone) by providing security
4 empty (a vessel) by bailing
5 remove (water) from a vessel with a container

User Contributed Dictionary

English

Pronunciation

Etymology 1

Noun

  1. Security, usually a sum of money, exchanged for the release of an arrested person as a guarantee of that person's appearance for trial.
  2. Release from imprisonment on payment of such money.
  3. The person providing such payment.
  4. One of the two wooden crosspieces that rest on top of the stumps to form a wicket.
  5. A bucket or scoop used for removing water from a boat etc.
  6. In the context of "furniture": Normaly curved handle suspended between sockets as a drawer pull.
Derived terms
Translations
security
bucket or scoop

Verb

  1. To secure the release of an arrested person by providing bail.
  2. To release a person under such guarantee.
  3. To set free.
  4. To hand over personal property to be held temporarily by another.
  5. To remove water from a boat by scooping it out.
Derived terms
Translations
to remove water

Etymology 2

by shortening from bail out

Verb

  1. To exit quickly.
    With his engine in flames, the pilot had no choice but to bail out.
  2. : To not attend.
    I'm going to bail on this afternoon's meeting.

Irish

Etymology

From bal.

Pronunciation

  • lang=ga|[bˠalʲ]

Noun

  1. prosperity
  2. proper condition, order

Declension

Extensive Definition

Traditionally, bail is some form of property deposited or pledged to a court in order to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and be guilty of the crime of failure to appear). In most cases bail money will be returned at the end of the trial, if all court appearances are made, no matter whether the person is found guilty or not guilty of the crime accused. In some countries granting bail is common. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail. Countries without bail imprison the suspect before the trial only if deemed necessary.
Legislatures may also set out certain crimes to be unbailable, such as capital crimes.
Under the current law of England and Wales, bail simply refers to the release of the accused before trial.

Forms of bail

The form of bail varies from jurisdiction, but the common forms of bail include:
  • Recognizance — a promise made by the accused to the court that he/she will attend all required judicial proceedings and will not engage in further illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited; this is denominated an unsecured appearance bond or release on one's own recognizance.
  • Surety — when a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially jurisdictions that prohibit bail bondsmen, may demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. This also known as surety on the bond.
  • Conditions of release - many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.
  • Protective order also called an Order of protection- one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.
  • Cash — typically "cash only," where the defendant must provide the amount of the bail to the court.
  • Combinations - courts often allow defendants to post cash bail or bond, and then impose further conditions, as mentioned above, in order to protect the community or ensure attendance.
Bail may be forfeited, and the defendant remanded to jail, for failure to appear when required.

Bail law in England and Wales

History

In mediæval England, the sheriffs originally possessed sovereign authority to release or hold suspected criminals. Some sheriffs would exploit the bail for their own gain. The Statute of Westminster (1275) limited the discretion of sheriffs with respect to the bail. Although sheriffs still had the authority to fix the amount of bail required, the statute stipulates which crimes are bailable and which ones are not.
In the early 17th century, King Charles I ordered noblemen to issue him loans. Those who refused were imprisoned. Five of the prisoners filed a habeas corpus petition arguing that they should not be held indefinitely without trial or bail. In the Petition of Right (1628) the Parliament argued that the King had flouted the Magna Carta by imprisoning people without just cause.
The Habeas Corpus Act 1679 states, "A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter or offenses for which by law the Prisoner is not bailable."
The English Bill of Rights (1689) states that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required." This was a precursor of the Eighth Amendment to the US Constitution.

Forms of Bail

In the UK there are three types of bail:
  1. Police Bail where a suspect is released without being charged but must return to the police station at a given time.
  2. Police to Court where having been charged a suspect is given bail but must attend his first court hearing at the time and Court given
  3. Court bail where having already been in court a suspect is granted bail pending further investigation or while the case continues

Police bail before charge

Under the Police and Criminal Evidence Act 1984, the police have power to release a person, who has not been charged, on bail. This is deemed to be a release on bail in accordance with sections 3, 3A, 5 and 5A of the Bail Act 1976.

Police bail after charge

After a person has been charged, he must ordinarily be released, on bail or without bail. Unless the accused has a previous conviction (or equivalents in cases of insanity) for certain specified homicide or sexual offences, the accused must be released either on bail or without bail unless:

Bail by a court

Right to bail

Under current law, a defendant has has an absolute right to bail if the custody time limits have expired and otherwise ordinarily a right to bail unless there is sufficient reason not to grant it
The court should take into account:
  1. the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),
  2. the character, antecedents, associations and community ties of the defendant,
  3. the defendant’s bail record, and
  4. the strength of the evidence.
The Criminal Justice Act 2003 amended the Bail Act 1976 restricting the right to bail for adults who tested positive for a Class A drug and refused to be assessed or refused to participate in recommended treatment

Conditions

Conditions may be applied to the grant of bail, such as living at a particular address or having someone act as surety, if the court considers that this is necessary:
  • to prevent the defendant absconding;
  • to prevent the defendant committing further offences whilst on bail;
  • to prevent the defendant interfering with witnesses; or
  • for the defendant's own protection (or if he is a child or young person, for his own welfare or in his own interests).
Failing to comply with bail conditions is not an offence, but may lead to the defendant being arrested and brought back to court, where they will be remanded into custody unless the court is satisfied that they will comply with their conditions in future.

Bail law in the United States

In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of British law. In 1776, after the Declaration of Independence, those which had not already done so enacted their own versions of bail law.
Section 9 of Virginia's 1776 Constitution states "excessive bail ought not to be required..." In 1785, the following was added, "Those shall be let to bail who are apprehended for any crime not punishable in life or limb...But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail."
Section 29 of the Pennsylvania Constitution of 1776 states that "Excessive bail shall not be exacted for bailable oflences: And all fines shall be moderate."
The Eighth Amendment in the US Federal Bill of Rights is derived from the Virginia Constitution, "Excessive bail shall not be required...", in regard to which Samuel Livermore commented, "The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail...?" The Supreme Court has never decided whether the constitutional prohibition on excessive bail applies to the States through the Fourteenth Amendment.
The Sixth Amendment, to the Constitution, like the English Habeas Corpus Act of 1678, requires that a suspect must "be informed of the nature and cause of the accusation" and thus enabling a suspect to demand bail if accused of a bailable offense.

The Judiciary Act of 1789

In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.
The Judiciary Act states, "Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein."

The Bail Reform Act of 1966

In 1966, Congress enacted the Bail Reform Act of 1966 which states that a non-capital defendant is to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital crime, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does not permit a judge to consider a suspect's danger to the community, only in capital cases or after conviction is the judge authorized to do so.
The 1966 Act was particularly criticized within the District of Columbia, where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.
The Judicial Council committee recommended that, even in non-capital cases, a person's dangerousness should be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in noncapital cases.

Current U.S. bail law

In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.
18 USC 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.

State bail laws

Bail laws vary somewhat from state to state, as is typical of U.S. jurisprudence. Generally, a person charged with a non-capital crime is presumptively entitled to be granted bail. Recently, some states have enacted statutes modelled on federal law which permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.
Some states have very strict guidelines for judges to follow, with a published bail schedule. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.

References

tags

bail in Danish: Kaution
bail in German: Kaution
bail in Spanish: Libertad provisional
bail in Hungarian: Óvadék
bail in Japanese: 保釈
bail in Malay (macrolanguage): Jaminan
bail in Portuguese: fiança judicial
bail in Simple English: Bail
bail in Serbian: Јемство (кривично процесно право)
bail in Yiddish: בעיל
bail in Chinese: 保釋

External links and References

Frequently Asked Bail Questions

Synonyms, Antonyms and Related Words

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