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BAIL-SETTINGDECISIONS

The bail-setting decision is one of the early court

decisions made in a case, and it has attracted attention

from researchers studying legal decision making.

When a case is adjourned (postponed), the court must

decide what to do with the defendant until the next

hearing of the case—basically, should the defendant

be released on bail or not? The main goal of the bail

decision is to ensure that the defendant appears at

court for the next hearing. The bail decision also can

affect later decisions in a case. Although laws govern

the bail decision-making process, they are typically

vague and ill defined, thus allowing courts consider-

able discretion. Past research on bail decision making

has mostly been conducted in the United States and

the United Kingdom; researchers have aimed to

describe how courts make bail decisions as well as to

evaluate efforts to improve bail decision making.

Because it arises each time a case is adjourned for

trial, sentence, or appeal, the bail decision is one of the

most frequent legal decisions made by the criminal

courts. The primary goal is to ensure that the defendant

surrenders to the court at the next hearing of the case

and so does not abscond. A secondary goal is that the

defendant does not threaten community safety (e.g.,

offend) while released on bail. In the United States, the

court sets a monetary amount of bail. A defendant may

either be required to provide a security (deposit the

amount with the court) before release, which is for-

feited if he or she fails to appear in court, or be released

on recognizance, which is a promise to appear, so the

amount is paid only if he or she fails to appear. (For a

fee, bail bondsmen can act as a surety, a third party

who agrees to pay the forfeited amount to the court.)

Nonfinancial conditions, such as curfew and surren-

dering firearms, may also be applied to bail. In the

United Kingdom, defendants can be bailed (released)

unconditionally; bailed with nonfinancial conditions

or financial conditions, such as surety or security; or

denied bail and remanded into custody. Whereas in the

United States the bail decision is commonly measured

on a continuous scale reflecting the monetary amount

at which bail is set, in the United Kingdom the deci-

sion is typically measured as categorical because

financial bail is uncommon. In most jurisdictions, bail

jumping (skipping bail or absconding) is an offense.

The bail decision-making process is often gov-

erned by legislation, which is periodically revised. For

instance, in the United States, currently there is the

Federal Bail Reform Act of 1984 (state laws vary); in

the United Kingdom, there is the Bail Act of 1976. It

has often been recommended that the practice of bail

decision making should adhere to the principles of due

process rather than crime control. Thus, there is typi-

cally a general right to bail or pretrial liberty. However,

there are exceptions if the court decides that the defen-

dant may pose a risk of absconding or offending. The

laws typically recommend that the court considers sev-

eral factors (e.g., the defendant’s offense, community

ties, previous convictions, prior bail record, and

strength of the prosecution’s case) when judging these

risks and consequently making bail decisions. Beyond

this, the court is afforded considerable latitude in mak-

ing bail decisions in terms of how it weights and inte-

grates these and other factors.

The bail decision can have significant negative ram-

ifications for defendants and their families if a defen-

dant is denied bail or cannot raise the bail amount. For

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