by Jerry Watson
The late Honorable Thomas P. “Tip” O’Neill, former Speaker of the House of Representatives, remarked, concerning the importance of our nation’s Constitution: “We have prospered as no other nation on earth. The bedrock of our success has been the enduring Constitution and our ability and desire to uphold and defend it and the remarkable representative democracy it has fostered.”
No wonder, then, that upon the taking of a public office the newcomer is required to state, under oath, that he will uphold and protect the Constitution and the rights it guarantees.
That includes, of course, the amendments to the Constitution as well, and the one that addresses persons being released pending trial is the Eighth Amendment, which provides: “There shall be no excessive bail.”
The Eighth Amendment’s excessive bail provision applies not only to the federal courts, but to all state and lower courts as well, through the Fourteenth Amendment.
The United States Supreme Court has told us what the Eighth Amendment really means by defining the word “excessive” as found at the heart of the Amendment. The Court said bail is excessive when it is set in an amount higher than that reasonably calculated to ensure that one accused will stand trial and submit to sentence if found guilty.
Unfortunately, today, in many jurisdictions, the very starting point of the Amendment is being ignored. It all started with the idea of getting a person to court. It’s simple, really: Bail is about, first of all, ensuring appearance. Then, starting there, and being a nation of fundamental fairness, the founding fathers wanted to make sure that an accused got a fair shake on bail.
So, they put in a rule (the Eighth Amendment) saying: Don’t set it too high. But it is clear, from logical extension, they didn’t want to set it too low, either. Remember, getting the person to court comes first. See Stack v. Boyle 342 U.S.1, “The fixing of pretrial bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant to trial…” (Underlining author’s)
Just, therefore, as bail can be set too high under the Eighth Amendment, it can also be set too low, and this is the flip side of the Amendment.
When bail is set too high, the defendant is unduly deprived. When bail is set too low, society suffers. We know this from recent very credible studies showing that in own recognizance and deposit bail systems, the failure to appear and recidivism rate is much higher than when persons are released on full financially secured bail.
Thus, the number of crime victims in a community will increase in direct proportion to the number of persons being released on inadequately lax bail conditions.
This obviously begs the question: Why would local justice systems utilize release approaches where bail is so lax that the community suffers?
The answer can only be a lack of knowledge, or in the alternative, a feeling that they have no choice. We must presume that those in charge of such release decisions want to promote community safety but feel constrained to opt against setting of complete financially secure bail because they perceive that the defendant cannot afford to purchase a bail bond.
That perception in today’s bail world is just that: a perception, albeit an unfounded one. Recognizing the high rate of joblessness in the current economic climate, sellers of commercial bail bonds have adjusted their pricing model to meet the needs of the market place. So today virtually all defendants can obtain a commercial bail bond.
The only exceptions to this are (1) the pure transient or, (2) that person who has burned every bridge he ever had with family, friends and the community. Whether persons meeting these qualifications should be detained in any event is a decision for the judge. The single possible exception to this is the situation where bail has been set so high that almost no person can meet it.
Therefore, the judicial officer setting bail can accommodate both the community’s public safety interests and the Eight Amendment right of the accused to reasonable bail. Fully secured bail can be set, it can be purchased by the defendant and the interests of all involved are adequately protected.
Hence, the bail profession finds itself called upon to work in league with the courts and those who crafted our Constitution, to assist our justice system in performing the tasks for which it was designed—protecting the rights of the individual while not harming the greater public good.
Daniel Webster wrote: “We may be tossed upon an ocean where we can see no land—nor, perhaps, the sun and stars. But there is a chart and a compass for us to study, to consult and to obey. The chart is the Constitution.”
Knowledgeable courts and good bail bond women and men will follow it, and help others to do so, too.