The bail bonding system stretches back at least to 13th century England where it took root as a way to protect the rights of people against the overzealous actions of the crown. The powers that be at that time were not above simply imprisoning people they saw as potential threats to their reign. The bail system evolved in response to those kinds of abuse. It ensured a person would be allowed to return home while awaiting their day in court as long as they ponied up a certain amount of cash or collateral. That cash or collateral would then be forfeited if they failed to appear and face the charges against them. The system, while not perfect, has been a bulwark against unjust incarceration for some 800 years.

Government Attempts to Circumvent the Right to Bail Bonds

Once the principle of bail took hold the powers that be naturally sought a way to circumvent it in order to protect what they saw as their legitimate interests. The English crown would say, in essence, “Okay, we’ll offer you bail. But it will be so high you won’t be able to pay it!” The eventual response to this tactic was the development of laws which forbid excessive bail.

By the time of the founding of the United States the principle of bail was well established as was the principle that you could not detain someone artificially by requiring them to pay an outrageous amount of bail. In fact the 8th Amendment to the US Constitution clearly states the “excessive bail shall not be required”. But it turns out excessive bail wasn’t and isn’t the only trick governments use to keep people illegally behind bars. Because in response to laws forbidding the use of excessive bail the powers that be - aware that bail is not an explicitly delineated constitutional right - simply incarcerated people and denied them bail altogether.

So a quick review reveals that:

• Bail evolved as a way to prevent governments from incarcerating people without cause.
• Governments responded by setting unattainable bail amounts.
• New laws (including the 8th amendment to the US Constitution) forbid “excessive bail”.
• Governments arrested people anyway and simply denied them bail altogether.

As you can see every move made to protect the rights of the common people has elicited a response from government aimed at nullifying that move. So how did the law respond to governments who simply arrested people and held them without bail? The answer was/is “habeas corpus”.

Produce the Body

Habeas Corpus is a Latin term which, roughly translated, means “Produce the body”. In other words the court orders that the custodian of the arrested person - whether it be the sheriff’s office, local police or federal agents - bring that person to court and prove that they have just cause to hold them. If they cannot prove just cause the prisoner must either be released outright, or offered bail.

Historical note: During the American Civil War Abraham Lincoln suspended habeas corpus in order to hold Confederate soldiers and Southern sympathizers (who were still technically US citizens) indefinitely without having to show cause. Even though a Supreme Court judge ruled his action illegal, Lincoln ignored the judge.

A year later Congress passed the Habeas Corpus Suspension Act which effectively suspended the right in all the Southern states for the duration of the war. During the Afghan war following September 11, 2001 the Bush administration got around habeas corpus by sending foreigners taken prisoner in Afghanistan to Cuba where it was presumed the right to habeas corpus did not extend.

Who Files a Writ of Habeas Corpus?

It is the defense attorney who files the writ of habeas corpus with the court on behalf of their client. And the court that orders the police to produce the defendant and demonstrate just cause for holding them. Remember the court has no part in arresting people. It simply processes the people arrested by the police and charged by the district attorney’s office.

Enter the Bondsman

Should the state be unable to show just cause for detaining the prisoner they must be released immediately. If however, there is sufficient evidence to warrant the charges against the prisoner, but not enough evidence to warrant holding them without bail, the court will set a bail amount. The defendant is then free to either post bail themselves or contact a bail bondsman.

The Process

Some people wonder if the process to obtain bail in Adams County, Broomfield County, Weld County or Denver is any different if there is a writ of habeas corpus involved. The short answer is “no”. Regardless of how it was determined that the defendant is eligible for bail once that determination has been made by the court the defendant, or one of their loved ones, is free to contact a bail agent.

The Bottom Line

If you or someone you know is being held without just cause you need to be aware of your right to file a writ of habeas corpus with the court. If the judge determines that there are no grounds for holding you they will order your immediate release. If they determine there is merit to the charges against you but no justification for denying you bail they will set a bail amount and you are free to contact a bonding agent. If you have any questions or need to obtain a bond for a loved one contact Rapid Release Bail Bonds today at (720) 988-8304.