Your Honor, the Defense Asks for a Meaningful Bail

Document Type

Blog Post

Journal Title

American Criminal Law Review Online

Publication Date



The number of people that remain detained pending trial because they cannot post bail is staggering. Courts deny defendants bail because they may pose a danger to society.1But, when a defendant is given a bail amount, he is given an opportunity to his liberty prior to trial because he is not a threat to society. Whatever the amount may be, the logical presumption is that the defendant should be able to afford bail; otherwise being detained based on inability to pay would be an effective denial of bail. So, what is the point of bail if it results in incarceration?

When a court enters a bail amount for a defendant, the court is making an individualized determination that would, theoretically, allow for the pretrial release of the individual but require that he bear an economic risk so that he is incentivized to make all court appearances pertaining to the arrest. For instance, if bail were set at $150,000 at ten percent, then someone on behalf of the defendant could take $15,000 cash to the detention facility for the defendant’s release. That ten percent would be held as collateral and only returned on the condition that the defendant appear for all court dates. This scheme serves several functions within the criminal justice system. It (i) creates an economic incentive to avoid failures to appear,2 (ii) promotes the presumption of innocence at the pretrial stage by giving the defendant an opportunity to his liberty prior to sentencing,3 and (iii) promotes community wellness that prolonged pretrial detention would handicap.4