Bail me out

If you drive past your local jail or courthouse, chances are you’ll find a cluster of similar businesses nearby: bail bondsmen. Some of the ones in my county have rather fanciful names: Bad Moon. Bad Boys. Aladdin. Redemption. Underdogg. And my personal favorite, ABBA. I’m wondering whether the last one assists people who snapped after overdosing on 1970s Swedish pop music, and I’m hoping they perform their services with an appropriate soundtrack.

Last week I wrote about bail in general; this week, let’s talk about bail bondsmen.

I’m going to begin with a warning to—as usual—be aware of the rules in your jurisdiction. A few states have banned bail bondsmen altogether because the practice discriminates against poorer defendants.

The basic operations of bail bondsmen are fairly simple. Let’s suppose Wanda has been charged with arson of an inhabited structure. She’s facing some serious prison time, so to make sure Wanda doesn’t wander—and fail to show up for trial—her bail amount will probably be high. In California, the presumptive amount may be $250,000. Now, few of us have a quarter million dollars sitting around, and Wanda’s no exception. So what can she do to keep from languishing in jail while waiting for trial? Go to a bail bondsman, of course.

What’s going to happen is Wanda (or her friends or family members) will pay the bondsman 10% of her bail amount (this percentage varies, but 10% is most common). In return, the bondsman will post a bond with the court, ensuring Wanda’s appearance at trial. If Wanda shows up, great, although she’s still going to be out that $25,000 because that’s the bondsman’s fee for services. That’s true even if she’s eventually found not guilty. If Wanda flees, the bondsman will have to pay the court the full $250,000. Naturally, he’s not going to be happy about that. He’ll either hunt down Wanda himself or hire a bounty hunter to do so, and if they eventually capture Wanda and drag her back to jail, the bondsman will get his money back.

In theory, bail bondsmen are a good idea because they help lower income people stay out of jail while awaiting trial. In practice, though, the process means poor people—even innocent ones—are going to have to pay to remain free, while wealthier defendants who can afford their own bail won’t pay anything in the long run because they’ll eventually get the full amount of their bail back. For this reason, a few states have banned bail bondsmen and instead permit defendants to post 10% of their bail directly to the court. If those defendants show up, they’ll get all the money back. If they abscond, they lose the 10% and become liable for the full amount of their bail.

Who can become a bail bondsman? Many states have no training requirements. Generally, the primary requirement is that the bondsman be licensed as a small business. Other states have rules about criminal history, education, and other criteria.

I think the bail bondsmen’s potential as plot fodder is underappreciated. If you want to watch a movie that made good use of this idea, consider Midnight Run.


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.



Letting the victims have their say

The US criminal justice system was never meant to serve victims. This may seem harsh, but it’s the reality. After all, look at the names of criminal cases: People of the State of California v. Smith. United States v. Jones. Criminal law is a battle between the government and the defendant. The government is, at least in theory, representing the residents of that jurisdiction who have allegedly been harmed by the defendant’s actions.

I know what you’re thinking. The residents have been harmed? What about the victims?

The main answer is that the civil law system is for victims. If someone is injured by a criminal act, the victim can almost always bring a civil lawsuit against the offender, whether or not that offender has been criminally convicted. The standard of proof will be easier to meet in a civil case than in a criminal case, which means that even when a defendant is found not guilty on criminal charges, he can still be held liable in a civil case (as happened, famously, to both OJ Simpson and Robert Blake). Furthermore, if the defendant was convicted, that conviction can be used as evidence in the civil lawsuit.

But victims might not want to get involved in a civil suit for various reasons. And even if they win, the most they can get is an award for money damages—which isn’t going to do them much good if the bad guy’s broke or sitting in prison.

Victims often do take part in criminal cases as witnesses, but whether they testify and what questions they answer are completely within the lawyers’ discretion and intended to serve the lawyers’ needs. By the time cross-examination is over, some (but certainly not all) victims may feel even further traumatized by the process.

Some years ago, a new way for victims to participate in the criminal justice process arose: victim impact statements. These come after defendants are convicted and before they are sentenced. They allow the victims to address the court directly—without being questioned by attorneys—and talk about the impact of the crime on them. The statements are usually prepared ahead of time and read in court, although some jurisdictions allow some or all of the statement to be video recorded.

Victim advocates say that these statements are a powerful tool, allowing victims the psychological satisfaction of having had their say and also, perhaps, informing the court on an appropriate sentence. But the statements are controversial. Critics say they introduce unnecessary bias and emotion. Critics also claim that those who attack powerful or well-loved victims are more likely to receive harsher punishment than those whose victims were already marginalized. If a homeless man is murdered, for instance, who will appear in court to talk about the effects of his death? But does that mean his life is less valuable than, say, a wealthy person with a large family?

What the sentencer (usually the judge) does with the victim impact statement is entirely discretionary. The sentencer might ignore it. Or the sentencer might take it to heart and award the maximum allowable punishment.

Incidentally, from an author’s perspective, a victim impact statement could make for a wonderfully emotional scene. It might also be a good way to allow otherwise silent characters to talk about their lives and feelings, so it could serve as an expository device.


Have I got a bargain for you!

So you’ve described a crime. A suspect’s been caught, he’s all lawyered up, and now there’s a juicy trial scene you can’t wait to write. Maybe you’ve been inspired by all those great courtroom scenes you’ve seen on TV and in movies—all those wonderful speeches by lawyers; the surprise witnesses (which are almost never really allowed, by the way); the shocking new pieces of evidence (also rarely allowed); the high emotions of defendant, victim, and jurors. Courtrooms are a beautiful setting for drama.

But here’s the thing–in real life, few cases ever make it to court. In the United States, over 95% of criminal cases are settled with a plea bargain.

A plea bargain is pretty much what it sounds like: a negotiated deal between prosecutor and defendant. Generally, the defendant agrees to forego the trial and plead guilty to lesser charges. If there are multiple charges involved, the prosecutor might drop some. Or the defendant might plead guilty to the original charge but receive a reduced sentence. Judges usually approve plea bargains, although on rare occasions they may reject them. Recently, for example, a judge rejected a plea deal for the former LA County Sheriff because, the judge said, the resulting sentence was too lenient.

Plea bargaining usually begins early in the case but becomes more earnest after the preliminary hearing (or grand jury proceeding), which is when the defense gets a fairly thorough preview of the prosecution’s case. A plea deal can continue during the trial, right up until the moment the verdict is announced, but usually an agreement is made long before the case gets to court.

The biggest benefactor of plea bargaining is the system itself. Our courts are already overburdened, and the justice system would come to a screeching halt if plea bargains didn’t exist. Can you imagine if the number of criminal trials were increased by 2,000%? Prosecutors benefit because plea bargains make their conviction rates look good. Defendants might benefit by getting a reduction in punishment. Arguably, victims might benefit by avoiding the rigors of testifying in court, as well as by having faster closure to their cases.

But plea bargaining is controversial. Victims’ advocates and those who favor harsh punishment argue that offenders get less than they deserve. Even worse, though, innocent defendants may be pressured by overburdened defense attorneys into pleading guilty. Even if the defense attorney doesn’t exert pressure, the innocent defendant is faced with a terrible gamble: plead guilty and get punished for a crime she didn’t commit, or take her chances at trial, knowing that if she’s convicted, she’ll end up with an even more severe punishment.

Personally, I think that’s a plot point that’s received way too little attention. Imagine the angst your character will experience while she decides whether to say, plead guilty to manslaughter and do ten years, or go to trial on murder charges and possibly end up in prison for the rest of her life. Picture the pressure she’ll be under from her lawyer, her friends and family. The mental anguish she’ll face no matter which decision she makes. There’s so much fictional gold to be mined here, you might want to consider skipping that boring old trial scene altogether.