Black’s Law Dictionary defined bail as: “v. To procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.”
A court speaking tells us it is : “To procure release of one charged with an offense by insuring his future attendance in court and compelling him to remain within jurisdiction of court. Manning v.State ex rel. Williams, 190 Okl. 65, 120 P.2d 980, 981.”
I really did not have to go to Black’s Law dictionary to understand what bail is all about. A person, presumed innocent, is charged with a crime. When before a court, the judge has two basic choices: hold him or her in custody, or, release the person on his guarantee (or someone else’s) that the person will return to face the charges at some future date.
Bail when given can be based on the word the person that he (or she) will come back without requiring any security for it; or require the person to put up some security important enough to the person (or the person putting up the asset) that he (or she) will not want to lose it by not coming back.
Thus we have the either or dilemma and the confusion surrounding it. Is it not time we do away with it all together? Why not simplify the system and bring it into the 21st century by tossing out the word bail and coming up with a new word or concept to move forward.
The idea of imposing $1,000, or $10,000 or even $100,000 bail is for some people the equivalent of saying go to jail when it is clear that the person will never be able to raise that amount of bail. Why then go through the charade?
Or suppose bail is $1,000, or $5,000, or $20,000 or $25,000 do you think if the person raises that amount he or she will be motivated to come back because of that alone? I suggest not one of those sums will bring a person back to the court who is not interested in returning.
I suggest we come up with a new system that makes it easier on judges to move the cases through the courts so that they can attend to more important business than deciding between the $15,000 asked for by the prosecutor and the $2,000 asked by the defendant’s counsel. I seek to have judges given the time to deal with more difficult decisions. .
What, you say: “everyone gets released with no security!” That’s true, the presumption is everyone gets released unless the prosecutor files along with the charge a request for a hold. Think of it. The person should be released or held; one or the other. Treat everyone the same. A $200,000 bail on a rich man is equivalent to a release; on an average man is equivalent to being held. Yes, some can pay for a bond or put up a residence but why have to be out of pocket for doing that? If the defendant wants to flee none of that will hold him.
The time the judge is freed from trivia he or she can use it to examine the hold request. It should be standardized and an affidavit should be filed along with it. The judge could then ask for more information, speak to witnesses, request information from defense counsel, and take whatever steps are necessary but may not engage in a mini-trial, nor give the defendant the right to cross-examine or confront the witness.
Our judges are fully capable of making these decisions. A hold must be decided on in three days or the defendant goes free. If the hold is upheld, the defendant can appeal the judge’s decision in an expedited appeal to the Appeals Court for a hearing which must be within a week from the time of the original hold.
It is a simple procedure that will expedite the processing of cases, the time people spend in court, and allow judges to make more important decisions. Those being held will have the hold reviewed by two judges.
Isn’t it time to stop the charade? Isn’t it time for a change? Let’s do it.