On any given day in 2020, roughly 630,000 people were locked up in local jails. The majority of them had not been convicted of a crime.
After an arrest — wrongful or not — a person’s ability to leave jail and return home to fight the charges typically depends on access to money. That's because, in virtually all jurisdictions, people are required to pay cash bail in order to secure their freedom. Originally, bail was designed to ensure people return to court to face charges against them. Now we know that simple solutions like court reminders often can achieve that purpose. And, the money bail system has morphed into one that perpetuates widespread wealth-based incarceration. The pretrial incarceration caused by unaffordable bail is the single greatest driver of convictions, and is responsible for the ballooning of our nation’s jail and prison populations.
Poorer Americans and people of color often can't afford to come up with money for bail, leaving them incarcerated in jail awaiting trial, sometimes for months or even years. Meanwhile, wealthy people accused of the same crime can buy their freedom and return home.
Across the country, money bail is set at levels that are far too high for many people or their families to pay. Defendants face an impossible choice: remain locked up in jail as the case moves through the system; pay a nonrefundable fee to a for-profit bail bonds company; or plead guilty and give up the right to defend themselves at trial. For poorer families, paying this fee can be a significant hardship. They won’t ever get the money back regardless of the outcome of the case – even if the arrest was a case of mistaken identity and no charges were ever filed.
This bail system has increased the jail population and made America's incarceration problem worse. According to a report by the Vera Institute for Justice, the number of annual jail admissions doubled in the past three decades to 12 million, and the average length of stay increased from 14 to 23 days.
The ACLU Campaign for Smart Justice is fighting in state legislatures and in the courts to end the unjust bail system, and is working to end the for-profit bail industry, which profits off this injustice. Current bail practices are unconstitutional because they violate the rights to due process and equal protection under the Fourteenth Amendment, the prohibition against excessive bail found in the Eighth Amendment, and the right to a speedy trial guaranteed by the Sixth Amendment.
For-profit bail bond companies and the insurance companies who back them don't want to see changes to a system that generates revenue for them, but some states are starting to look at a smarter path forward. In New Jersey, for instance, lawmakers have imposed bail reforms that consider the individual in deciding whether someone can return home, not just how much money that person has. Illinois recently became the first state to completely abolish cash bail and invest in alternatives to promote pretrial release and success. We also saw a massive victory in February 2020, when following a pressure campaign private equity firm Endeavour Capital divested from Aladdin Bail Bonds, the then largest for-profit bail bond company in the US. This came after a multi-year campaign by ACLU Smart Justice and Color of Change pushing them and their investors to divest. Our next corporate target is Fairfax Financial, a Toronto based company which has now assumed the title of the largest owner of commercial bail in the U.S. This approach makes the system more equitable and effective.
Bail is when a person enters a written bond, also known as recognisance, committing to appear before the court to answer the charges made against them. Bail is based on the principal that the accused is presumed innocent until proven guilty. A person may be required to lodge money as part of their bail.
Types of bail
Station bail: A person arrested and brought to a Garda station can be charged by way of charge sheet and released on station bail to appear before a court at a specific date and time. They may be required to lodge money before being released from Garda custody.
District Court bail: When a person is brought before the court, the judge may release them on bail and set conditions attached to the bail. The person may be required to lodge money before being released from court.
The court may decide that an independent surety is required to guarantee the appearance of the accused person. An independent surety is a person who makes him or herself responsible for the appearance of the accused person in court. He or she promises to pay a sum of money to the court if the accused person does not appear as agreed. The court must approve the independent surety.
High Court bail: When a person is charged with treason, war crimes, murder, attempt to murder, conspiracy to murder or piracy and genocide, the District Court does not have the power to grant them bail. Certain offences under the Offences Against the State Act, 1939 and the Official Secrets Act, 1963 also rule out the granting of bail in the District Court. In those cases, the accused person or their legal representative must apply to the High Court for bail.
Appeal to High Court
A person refused bail in the District Court may appeal to the High Court. A person may also appeal to the High Court to reduce the amount of bail or to contest a condition of the bail set by the District Court.
Refund of bail
Bail money is returned when the case is completed in court and all conditions set by the court have been complied with. It is not returned if the accused person fails to appear in court. In that case the bail amount is estreated [or forfeited].
If you fail to comply with any of the bail conditions, the judge will issue a bench warrant. The warrant gives An Garda Síochána power to arrest you and bring you before the court to answer all charges relating to the bail. A breach of bail may also result in an additional charge against you.