The notion that bail bond laws are senseless just doesn’t make any sense. Judges and magistrates have leeway to begin with. It’s like trying to answer, “Which came first, the chicken or the egg?” and turning that into, “Do crimes make the courts, or do courts make the crime?”

Compassion and Crime Don’t Mix

Supporters of bail bond reform – God love their little bleeding hearts and Mother Teresa tattoos – invariably fall back onto age-old arguments about reforming the system. Namely, that it punishes the poor. If they can’t afford bail, they shouldn’t have to pay it. Wrong! The best way to avoid that dilemma is to stay out of trouble in the first place. Or that it infringes on due process or inflicts unusual punishment on those in society least prepared to atone for their crimes. Wrong again! Check out the Eighth Amendment to the Constitution.

Translation: They want to carry a very soft stick and apply it sparingly if the defendant is poor or has somehow been victimized by other criminal acts and isn’t fully responsible for his or her crimes as charged. Really? How about if you ask innocent people victimized by the likes of Romell Nellis, Tiffany Harris, or Eugene Webb.

Bail Bonds in Merry ‘Ole England and Other Facts

Here are some bail bond facts to keep in mind, especially if you’re on the fence about whether they really disenfranchise the poor.

• The notion of bail bonds originated in Saxony England in the 5th century or thereabouts.
• The Eighth Amendment says bail bonds can’t be excessive and must not include cruel or unusual punishment.
• Bail bonds are outlawed in eight states plus Washington, D.C.
• Some defendants can be released without bail money, especially in the case of small misdemeanor offenses.
• It's true. Dog the Bounty Hunter can pursue you if you skip out on bail or a court date.
• The bail bonding industry will loan bail money based on the defendant putting up collateral for the loan.
• The bail bonds option keeps the prison population low, as people who can afford to pay a bond almost always do.
• The bail bonds industry helps the economy, employing thousands across America.

Some Judges Aren’t Sold on No-Bail Laws

Let’s face the truth. The legal system has seen its share of bad judges making bad decisions or taking action that were outright criminal. Some have paid the price. Others took an oath to uphold the law and work within its confines, perfect or not. Many have supported, and will continue to support, the current system and how it operates, even with controversies surround the bail bonds industry.

But not all judges are sold on bail bond reform. Last December, the New York Daily News reported:

“A Manhattan judge lamented ‘the law is stupid’ in a startlingly sharp rebuke of sweeping criminal justice reforms on the horizon during bail hearings Wednesday.

“Manhattan Supreme Court Justice Maxwell Wiley’s candid assessment came on a day he delivered a number of sharp comments in open court, telling one defendant who faced burglary charges he believed it went ‘against all common sense and wisdom’ to release him.”

Judges caught in the firefight are reacting with vim and vigor. Also in New York, Onondaga County Court Judge Stephen Dougherty took a swipe at the New York law, saying, “It’s the most ridiculous piece of legislation I’ve ever seen in my life,” and insisting that bail reform is up to the courts and not politicians like New York Governor Andrew Cuomo, a fellow Democrat.

It’s obvious where this is going. Bail bond reform proponents got their way, criminals roughed them up, and now the public – i.e. taxpayers and voters – are taking notice. Is there an alternative?

Common Sense May Actually Work

The controversy around bail reform has caused a dust-up for lawmakers of all political stripes. Many support reform laws as passed in some states, believing that no-bail should be the norm, not the exception. Others began having second thoughts.

Daniel R. Alonso, in a long, detailed opinion piece in The New York Daily News, offered up some suggestions that not every bail bondsman will agree with, but noted such ideas are already in play in many federal court districts.

“So what is to be done? If policymakers wanted to be bold, they would eliminate altogether the idea that someone would ever be ‘held on bail.’ One should either be released on bond/bail or detained; another word for this second option is ‘remanded.’”

“Defendants released under this system would be released either on their own recognizance or on a series of conditions that could include: signing a bond that is a mere promise to pay (rather than actual cash) in the event of a failure to return, co-signing of the bond by family members, or imposing other conditions such as electronic monitoring or periodic reporting, paid for by the state.

“Each such ‘bail package’ would be tailored to the particular arrestee’s circumstances. The bond amount, for example, would be set with full consideration of the defendant’s socioeconomic circumstances, so the amounts would be adjusted accordingly.

“Most importantly, no one would ever be detained because of an inability to pay. If conditions will ensure their return to court (and, as discussed below, the safety of the public), then they must be imposed, and the defendant released. If no conditions would do so, then they must be detained.

“At the same time, we should make explicit what is implicit: Any sane system of pre-trial release and detention must consider dangerousness in the calculation.”