Prison Blues: A History of Jails and Bail Bondsmen in America

Did you know that the bail bonds system in America was designed after the one that originated in England? While you never want to find yourself in a situation where you need bail bondsmen, the history is fascinating.

If you are involved in the criminal justice system or just interested in learning more about the journey of bail bonds from the colonial days of America to the present then keep reading.

Starting in England

If you want to understand bail bonds in America, you need to understand the history that originated in England.

The bail bonds system started in England during medieval times. Back then crimes were a private matter that was between the victim and the person who committed the crime.

The legal system made sure that the victim paid for the crimes they committed.

To ensure that the accused showed up for their court date before release could occur, they would need someone to act as a surety for them. If they did not then the responsibility of payment would then pass to the surety. The payment amount the surety would need to pay would be what the defendant would have paid if determined guilty.

Changing Times

Bail continued to evolve in England. In 1275, 51 laws were codified by the parliament. Part of these laws was the prisoners and bail act.

This act created guidelines that decided what prisoners could have bail and who would not. It also put penalties for unlawful bail into place.

In 1628 a new Petition of Rights was passed by parliament. This was in response to King Charles I jailing five knights with no charges. Essentially this put the King in his place.

The Petition of Rights told King Charles the rights of Englishmen were from the law, not him.  This petition also covered unjust seizure of property, due process, protection from excessive punishment and fines, and trial by jury. The next big change came in form of the Habeas Corpus Act of 1679.

Habeas Corpus made it so that the court or judge had to decide whether or not the charge brought against a prisoner was legal. Before we head to America there is one more bill that impacted bail bonds that is important to know about.

The English Bill of Rights of 1689 addressed many rights of Englishmen. As it relates to bail bonds though it set laws against excessive fines and bail, and cruel punishment.

Welcome to America

We have now entered colonial America. The initial bail bonds system model copied what was present in England. But in the early days of America, things were a little different.

As time passed, colonial America began to adopt different attitudes and customs that were more liberal when it came to the penalties for crimes. In 1641, the Body of Liberties was passed in Massachusetts. This was the first legal code in the colonies.

There were 100 liberties or rights contained within the Body of Liberties that were for use as a guide in the courts. These rights included the right to a jury trial and the right to bail for cases that were not capital.

Pennsylvania is the next state that made changes that made waves and changed how bail worked within America. In 1682, Pennsylvania was a province and they created their constitution or Frame of Government.

With Pennsylvania’s Frame of Government, a more tolerant provision came about when it came to bail. In their constitution, bail was addressed under Article XI in the “Laws Agreed Upon in England, &c.” section.

These rights gave all prisoners the right to bail by sufficient “sureties.” When it came to capital cases, bail could only get denied if “proof was evident” or “the presumption great.” Soon this provision was in almost every colony.

More Changes

The next changes came in the form of the Bill of Rights. The ratification of the Bill of rights occurred in 1791. The eighth amendment is the important factor here.

This amendment addressed excessive bail. It stated that excessive fines or bail should not be imposed. It also addressed cruel and unusual punishment.

Because of the eighth amendment, those accused of crimes had the right to have the opportunity for pretrial release on a federal level.

Bail Bondsmen

Imagine you are in jail. You have a bond set but it does not matter because the bond amount is set at a level that you cannot pay. This means that you get left waiting in jail until your trial.

This is a position that many defendants found themselves in. However, one day along came Peter and Thomas McDonough. These two brothers lived in San Francisco and worked as bartenders in 1898.

They worked at a bar owned by their father. This bar was near the Hall of Justice on Montgomery. The bar had many lawyers frequent it. As a favor to the lawyers, Peter and Thomas would put up bail.

However, being the enterprising men they were, they soon realized that it would be more lucrative to cut out the middle man. They decided to deal directly with the accused and charge a fee for their service.

However, within time Peter and Thomas began to take a rather unethical approach to bail bonds. They built a network with judges and police and pretty soon everyone was on the take.

The bail bonding business began to grow through the early to mid-1900s. The next change to this industry came in the early 1960s.

Fast Forward to the 1960s

Over 60 years later from when Peter and Thomas started the first bail bonds business dissatisfaction with the system reigned. Many believed that bail bondsmen had too much influence when it came to how long someone was sitting in jail and waiting for trial.

There was also a lot of disdain surrounding the fact that bail bondsmen were profiting off the misfortune of others. In response to this, the Code of Criminal Procedure of 1963 passed in Illinois.

This was also known as the “Ten-Percent Deposit Plan.” The creation of this plan limited private bail companies. With this plan, 10% of the bond got paid to the court.

However, after the case was completed the fee went back to the defendant minus a service fee.

More Changes in the 1960s

Around the same time as the creation of the Ten-Percent Deposit Plan, shifts were also occurring in New York. The Vera Institute of Justice was founded in 1961. The creation of this institute was a response to the injustice present in the legal system for low-income individuals.

This Institute started pretrial services. The Manhattan Bail Project was the first pretrial services program. The Manhattan Bail Project found that many people stayed in jail because they could not afford the bail.

In addition, they found that individuals with strong ties to the community were not likely going to skip bail.

In 1963, Attorney General Robert Kennedy started looking into bail and detainment for those who are low-income. He formed a committee that issued a report that focused on bail and detainment for those of low income.

In response to this, Washington D.C. created its first pretrial services program in 1968.  Once these programs were established in D.C. other states soon followed.

Pretrial programs now assess and identify the needs of the accused. They gather information and present it to the judge to consider when deciding on pretrial release. After the release of the accused the pretrial program acts as supervisor and is responsible for letting the courts know about any violation of release conditions.

Fast Forward to More Recent Times

In recent times jail overcrowding is an issue. A report by the Bureau of Justice Statistics on Pretrial Release of Felony Defendants that covered 1990 to 2004 showed that 32 percent of individuals remained in jail until trial because they could not afford bail.

This has led to suggestions that range from the accused getting released and only needing to pay if they fail to appear or break their bond conditions to the elimination of bail for offenders considered non-violent.

Pretrial Services vs Commercial Bondsmen

The debate between pretrial services and commercial bondsmen continues. In the 1990s a “Strike Back!” initiative started. During this, commercial bail bond organizations worked in conjunction with the state legislature and other corporations to try to eliminate pretrial services.

Pretrial services agencies fought back and the battle has continued.

Bail Bonds Today

The history of bail bonds has shaped the system in place today. Today Illinois, Kentucky, Oregon, and Wisconsin still prohibit bail bondsmen. The 10% payment of the bond goes to the court.

How Does Bail Work? 

When an individual gets arrested they go to jail. While in jail their fingerprints, mugshot, and statement get taken.

The next step is a bail hearing before a judge. The judge determines whether or not the individual gets granted bail based on their crime and sets the amount of their bail.

Bail ensures that the accused shows up to court. The constitution ensures that most crimes are eligible for bail. However, the judge will also take into account the accused’s history.

If the defendant is unable to pay the bail on their own, they can get bail assistance. Bail assistance comes through bail bondsmen, such as Bail 2 GO.

To get a bail bond, the individual will need to pay 10 percent of the bail amount to the bondsman. The rest of the bail is in the form of collateral. However, if the accused does not have enough collateral friends or family can help.

If the person fails to show up to court they lose their bond and the remaining 90 percent of the bond must get paid to the court. The collateral signed over to the bail bondsmen is then used to pay this.

If the individual does show up for court then the bail bond ends and the collateral gets returned. However, the bail bondsmen keep the 10 percent cash fee as profit.

Types of Bail

If you are looking at posting bail for yourself or a friend it is important to know the different types of bail. This will help in determining how to post bail.

There are five different types of bail. Some types are used more often than others.

The first type is cash bail. With cash bail, the defendant is going to pay the full amount of the bail using cash. The next type is a Surety Bond. This type of bond is where bail bondsmen come into play.

The third type of bail is “release on citation” or “cite out.” In these circumstances, a citation gets issued by a police officer requiring the person to appear in court.

The fourth type of bail is “release on own personal recognizance” or OR. In this case, no bail is paid however, the person is still expected to show up for court.

This type of bail can is only issued to individuals who are not a flight risk and are charged with a crime considered minor and non-violent. The final type of bail is a property bond.

In this case, the court places a lien on the defendant’s property that equals the amount of bail. If the individual skips out on bail then the court will foreclose on the property to recuperate the bail amount.

Know Your Rights

The history of bail bondsmen and bail posting is long. The history developed through many different bills and laws to ensure the rights of Americans. The hope is that you will never need a bail bondsmen. However, if you do find yourself in that position knowing the history will help you in knowing what your rights are.

Did you find this article interesting? If so keep reading in the law section for more information about law and more.

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