When someone is charged with a crime, we’re faced with a bit of a problem. On the one hand, our system presumes that a suspect is innocent until proven guilty. Therefore, suspects who have not been convicted should remain free while waiting for their cases to go to trial. On the other hand, some of those suspects are in fact quite guilty, and now that they’ve been caught, some of those guilty parties would no doubt abscond if given the opportunity. Therefore, we’d better lock them up while they await trial.

The solution to this conundrum, like many other components of our criminal justice system. comes to us from Merry Olde England. That solution is bail.

The basic concept of bail is simple. An accused person gives the court what amounts to a security deposit. If he shows up on his appointed court date, he gets the deposit back (regardless of whether he’s convicted or acquitted). If he doesn’t show up, he forfeits the money. In principle, bail insures against fleeing suspects while also allowing people to continue in their lives, retain their freedom, keep their jobs, and better assist in their own defense.

Bail rules vary across jurisdictions (big surprise, huh?). Generally, a judge has guidelines to follow based on the seriousness of the offense—not based on the defendant’s net worth. The prosecutor may request a higher than usual bail amount if the defendant is a particular flight risk. Bail might be denied altogether if the defendant is likely to flee; for instance, if he has few ties to the community or is a citizen of another jurisdiction. In some cases, bail might be denied based on the seriousness of the offense. In California, for example, people charged with first-degree murder cannot be granted bail.

If you read the US Constitution, you might notice that the 8th Amendment begins with this phrase: “Excessive bail shall not be required….” Federal courts must abide by that rule—although of course the Amendment doesn’t specify what standards should be used to determine what’s excessive. States, on the other hand, can ignore that clause entirely. That’s because of something called the Incorporation Doctrine—a long story we’ll save for another day. For now, suffice it to say that some small pieces of the Bill of Rights apply only to the federal government, and this is one of those pieces. So if a state wished to eliminate bail altogether, it could do so, although that would be an unwise decision leading to a crisis in jail overcrowding.

If a defendant is not granted bail or cannot afford it, he will remain in jail until trial. In practice, this means that poor people get locked up, while wealthier defendants tend not to be. Bail is controversial due to this aspect, and many critics have advocated for bail reform.

Defendants may also be released without bail. This tends to happen when the charges are relatively minor and the flight risk is small due the defendants’ strong community ties. In these cases, defendants will be released on their own recognizance (ROR for short). Once the defendant promises to refrain from criminal activity and to show up for court, he gets to go home.

In most places, defendants who can’t afford the full bail amount can hire the services of a bail bondsman. I’ll talk more about them next week.