History of Bail Bonds

Originally in medieval England the sheriff had all authority to release or hold suspected criminals.  In 1275 the Statue of Westiminster limited the sheriffs with respect to bail.  Sheriffs still could fix the amount of bail required the statue stipulated which crimes were bailable and which ones were not.

In the 17^th century King Charles I imprisioned people who would not issue him a loan.  Five prisoners filed a habeas corpus petition arguing they should not be held indefinitely without a trial or bail. 

The Habeas Corpus Act of 1679 states “A Magistrate shall discharge prisoners from their imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate’s discretion, unless it shall appear that the Party is committed for such Matter or offenses for which by law the prisoner is not bailable”

The English Bill of Rights 1689 states that “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.  Excessive bail ought not be required” This was the precursor of the Eighth Amendment to the U.S. Constitution.

Before America was independent bail law was based on English law.  In 1776 after the Declaration of Independence, those which had not already done so enacted their own versions of bail law.

Virginia’s Constitution of 1776 states “excessive bail shall not be exacted for bailable offences.”  In 1785 the following was added “Those shall be let to bail who are apprehended for any crime not punishable in life or limb. But if a crime be punishable by life or limb or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted bail.”  These early quotes show that the bail bonds systems in the United States sought to protect first and foremost the interest of its citizens, but it also sought to protect the rights of defendants as well.

The sixth amendment to the Constitution requires that a suspect must “be informed of the nature and cause of the accusation” and thus enabling a suspect to demand bail if accused of a bailable offense.

In 1789 Congress passed the Judiciary Act of 1789 which states “Upon all arrests in criminal cases bail shall be admitted, except where punishable by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.”

In 1966 Congress enacted the Bail Reform Act which states that a non-captial defendant is to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial.  In that case a judge must select an alternative from a list of conditions.  The Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in noncapital cases.

In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18 Sections 3141-3150.  The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community, under prior law traditional bail statutes in the U.S. pre-trial detention was to be based solely upon the risk of flight.

So as times have changed so have the various laws concerned with the bail bond system.  Keep in mind the bail bond system is in place to ensure the person charged with a crime come to court and face the consequences for his actions. 

As with other systems in place there is corruption within the bail bonds system that has been with the organization since the beginning starting with the sheriffs in Medieval England.  The sheriffs had complete control over the accused from release on their own recognizance to how much the sheriff would charge for release.

In 1898 Peter McDonough and his brother Tom founded the first modern Bail Bonds business in the United States, the system by which a person pays a percentage to a professional bondsman who puts up the cash as a guarantee that the person will appear in court.

During his years as the preeminent bondsmen in San Francisco, Peter was accused of bribery, perjury, suborning witnesses, tampering with judges, bootlegging, corrupting officials and controlling and paying off police.  Pete was considered the overlord of San Francisco vice, gambling and prostitution.  Over the years, Peter developed a network of wireless communications with outlying police stations.

The problem we have faced is incentives for defendants especially the guilty to appear in court, and the problem with corruption within the Bail Bond system.  The best solution thus far is the current Bail Bond system we now have in place.