The bail system has existed in America since colonial times. It addresses a timeless problem: how to ensure the appearance of a criminal defendant at trial without the need for pretrial incarceration. Detaining alldefendants prior to trial would be wrong; doing so would contravene the presumption of innocence and amount to punishment without trial. On the other hand, releasing all defendants pending trial—especially after a finding of probable cause to believe they had committed the charged offense, made in a preliminary hearing or by a grand jury—would allow criminals to flee to avoid conviction and possibly expose the public to further predation. Some mechanism is needed to balance these competing interests.
The longstanding solution has been to require the defendant to post collateral—in the form of a cash deposit, or a surety bond—that would be forfeited if he failed to appear at trial. The amount of collateral required varies depending on the seriousness of the crime and the circumstances of the defendant—principally the risk of flight prior to trial. Courts set a “schedule” of bail amounts for different categories of offenses, with judges having the discretion to fine-tune the amounts as necessary in particular cases.
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