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For individuals accused of crimes, pretrial release can mean the difference between freedom and months of waiting behind bars for trial to begin. Jurisdictions, courts and judges understand the impact this can have on a person’s life. Each day spent awaiting trial behind bars is another day the accused can’t work and has limited communication with family and friends.

One way the court system offers pretrial release is through bail: a payment made to the court that will be returned to the defendant, granted they show up for trial. When a defendant doesn’t have the financial resources available to secure bail, bail bondsmen are available to assist them.

In the interview below, David Garavito, assistant professor of law at the University of �鶹���� of Law, answers important questions about why bail may — and may not — be offered to those accused of crimes; controversies surrounding bail and bondsmen; and how the United States’ bail system compares to countries around the world.

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�鶹���� Law: What is bail and what purpose does it serve in the criminal justice system?

David Garavito (DG): Bail serves as a catchall for a tremendous amount of pretrial criminal conditions. When someone is arrested, at some point, they’re going to be officially charged with a crime. At that point, the judge must ask themself, “Is this someone who should be confined before trial? Or is this someone we should allow to walk the streets free until we prove them guilty?”

If someone is dangerous or likely to flee the country, then maybe they should be confined. But we don't like incarcerating people without proving some sort of guilt. So, bail is this middle ground where you can require them to put up some amount of money — or, in some states, also allow property as collateral — where if you don't show up, you forfeit the bail. But if you do show up to all your hearings, then you can get it refunded. It’s intended to get people to invest in the process and actually show up. This can also be combined with several other conditions, such as not leaving the state or surrendering your passport.

�鶹���� Law: How do courts decide the amount of bail in a case?

DG: The specifics depend on each individual jurisdiction. Generally, this is discretionary and up to the judge. Some states allow them to take in a tremendous amount of evidence in making their decision. Other states limit it to only evidence that's relevant to three different conditions — failure to appear, likelihood of committing a crime and the potential to unlawfully influence the legal proceedings, such as intimidating a juror. Others may even have different limitations, depending on jurisdiction. Then, there also might be statutory limits — or requirements — on how much bail can be set at, and these can limit the floor, or the ceiling, of the bail amount.

�鶹���� Law: What does the U.S. Constitution mean when it says, “Excessive bail shall not be required?” And what does that mean in practice?

DG: This is a very controversial topic because the Constitution says, “No excessive bail can be demanded,” but it doesn't say that you have a right to bail. Essentially, you could forbid someone from bail and say, “Nope, there's no way you're getting out. You're going to be incarcerated pretrial.” That doesn't violate the Constitution because that's not excessive bail — it's just no bail.

Conversely, though, if someone says, “Yeah, you can get bail. There's a chance you can have pretrial release on your own recognizance, but I'm going to set the bail for $20 billion.” Now, that's just an infeasible amount for almost anyone. But how much is too much? Individual judges have their vibe of, “Okay, this is too much. This is excessive.” And then you have the circuits and the Supreme Court, and they set relatively few limits on bail because they want to trust that judges aren't going to abuse their discretion. So, a lot of this doesn't end up dealing with the Constitution as much as it does with state constitutions and state legislation.

�鶹���� Law: What are right-to-bail states, and how do they differ from states without such a right?

DG: It’s interesting because the state of Washington is the only state that uses that phrase. Other states, however, have similar statutes. And what this means is that they presume you're going to get pretrial release — you at least have the opportunity for it. In the state of Washington, unless you have good evidence that the person is not going to appear, that they're going to commit a violent crime, or that they're going to unlawfully influence the proceedings, you have to give them the opportunity for bail. So, you must give them pretrial release options.

�鶹���� Law: What are the motivations behind bail reform throughout the United States?

DG: Two big downfalls with pretrial incarceration are that individuals can’t work, and they can’t connect with their families. So, there are a few different things that proponents have been trying to do in terms of bail reform: they want to increase the number of ways you can pay for bail and secure pretrial release; they want to diminish the number of times where no bail is allowed at all; and they want to statutorily reign in the ceiling for bail amounts just a little bit more.

�鶹���� Law: If someone can't afford bail, what happens to them before their trial?

DG: If you can't afford bail, then essentially, you aren't able to secure a pretrial release. You're going to be held, typically, in a jail, and you're just going to be held as if you're incarcerated until — and during — trial. This is one of those things where people can lose out on a tremendous amount of their livelihood. This is where even just being accused of a crime — even if you're completely innocent — could tank your life and your well-being.

This is something that, even if the system works — and I put that in quotes — and you are found factually innocent, your life has still been made the worse all around — even though the system works. And so, it doesn't seem like the system is actually working there.

�鶹���� Law: What role do bail bondsmen play, and why do people turn to them?

DG: Bail bondsmen are private companies, or private individuals, that help people secure bail. Let’s say you don’t have enough money to secure your bail and so you can’t secure pretrial release. You're starting to sweat. You start thinking you’re going to lose your job and not be able to make payments on things. So, you go to a bail bondsman, for example, who says, “If you give me $250, then I'll pay your $10,000 bail, and I'll be the one to put up the money for your pretrial release.” If you don't show up, though, they lose their $10,000.

This leads to a couple of different things. First, bail bondsmen typically allow property, or other things, to secure bail. Second, what they charge can vary greatly by individual companies, jurisdictions, etc. Third, as most people can imagine, bail bondsmen don't like it if someone doesn't show up; then they have to give up their money.

So, there are a couple things that bail bondsman can do. Typically, when you sign up for a bail bondsman, you must have some type of guarantee, or some type of collateral. You might also have other individuals guaranteeing that you’re going to show up. If you don't, the bail bondsman can start legal suits against you as well as the other individuals. That allows them to try to get the money back that they surrendered.

But here's the other thing: many jurisdictions — not all anymore, because it started to get a little controversial — allow bail bondsman to avoid liability for the money that they surrendered if they go out and deliver the person who was supposed to appear to the court. This is where bounty hunters come into play. Bail bondsmen typically pair up with bounty hunters and tell them, “Because you're going to find this individual, I'll pay you a portion of what I would have surrendered in terms of the bail. Then, I get most of my money back and you get a payday.”

This leads to a lot of controversy. Bounty hunters don't have too many regulations, and they don't have too many governing bodies. So, this can lead to an enormous amount of problems with people who are completely unrelated accidentally getting brought in and getting hurt or experiencing other kinds of harm.

This is why there’s a push for bail reform. Bail bondsmen can be helpful if someone was in in a tough place, but other times, they can be predatory. If you don't show up, they might start going after your family, and they might release bounty hunters on you that might get innocent people hurt.

�鶹���� Law: Are bail bondsmen and bounty hunters common in other countries?

DG: The interesting thing is that outside of the United States, this system of using commercial bail bondsmen is only used in one other country, which is the Philippines. It's one of those things where, internationally, it can catch a lot of people off guard.

�鶹���� Law: What type of pretrial release systems do other countries have?

DG: Some don't have any pretrial release: you automatically stay in prison. Those are the more punitive countries. Others, they have pretrial release, but they don't require you to put up money. In this modern day, that's kind of been the case because you can have GPS monitoring, and you can be required to surrender your passport. It's going to be hard for you to leave the country if you surrender your passport, so many other countries have just defaulted to that. They're just going to put really limiting conditions on you.

This can lead to a couple of different things. It could lead to fewer people showing up. But to be honest, given the technology available today with mass surveillance, facial recognition and stuff like that, it's probably negligible at this point. It has also led some people to start considering reform in the United States. The idea is that, with all this new technology, is a cash-based bail system really necessary anymore?