Often after a crime is committed, we hear outrage when a person is released on bail. That is more true the more heinous the crime. Well, let's look at the concept of bail | what it does and how it works.

Bail is a legal term for the money or property posted as security to assure that a person will return to court to face the charges against him or her. That posting can come in various ways. It can be upon personal recognizance, secured by conditions that always include good behavior, and an unpaid amount of money.

The unpaid amount of money can be anywhere from a few dollars to millions of dollars. Sometimes bail can be a pledge of cash only. In other words, a defendant is charged with a crime, his arraignment date or first court appearance is a week hence and the bail is $5,000, cash only. Unless the defendant puts up $5,000 in cash, he or she will remain in the care and custody of the government until the court date. If the accused posts $5,000, they may be released on certain conditions.

Again, those conditions often include good behavior and a waiver of extradition, in case he or she should they flee to another jurisdiction. Often, the court which has jurisdiction over the defendant will split the difference | some cash, some recognizance. In any event, if the defendant fails to appear for the scheduled court date, he or she forfeits the bail which has been posted.

Often, people do not have the money to post a large sum for bail. In that case, they may turn to a bail bondsman to assist with those financial arraignments. That person, with a pledge of security from the defendant or her family will post bail on behalf of the accused person.

Again, should the person fail to show, he would forfeit the bail to the bail bondsman. Some states authorize bounty hunting in which a person, the bounty hunter, pursues the person who has fled on behalf of the bail bondsman who put up the bail.

Initially, the only concern when setting bail, by the court or the bail commissioner, was the return of the defendant to face the charges. Further, the statutory law has now developed in many states so that a court considering the question of bail may also consider whether a defendant is a danger to the community or to him or her self. As well in certain cases, the court may not grant bail. Two examples in New Hampshire are capital murder and a violation of a protective order.

Bail is as old as our criminal justice system, with its origins in England as well. As early as 1689, the English Bill of Rights prohibited excessive bail. The colonies, in writing their early Constitutions, continued this prohibition on excessive bail. By the time the United States Constitution was drafted, the prohibition was codified in the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

As you consider the notion of bail, keep in mind that a person is not guilty before the law until the government proves the case against the defendant beyond a reasonable doubt as to each and every element of the offense.

That is our heritage, our law. Because we consider that there is a presumption that people are innocent, we hold the notion of bail to be self evident.



Londonderry police Capt. Bill Hart's column appears Fridays in the Derry News.



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