What Is Bail? Why Suspects Go Free Before Trial and Who Decides

Bail is the release of an accused person from custody pending trial, on their undertaking to return to court and, usually, on conditions. The word comes from the Old French for custody or charge, and the original form, older than Magna Carta, was a surety: a person of standing who took the accused into their keeping and promised to produce them at trial or forfeit a sum. The modern forms are a promise by the accused, sometimes backed by money or a bond, and a set of conditions, and the decision is made by a magistrate or judge, or by the police in the first instance for minor offences. A person on bail has not been found guilty of anything and remains free in every respect except the conditions imposed.

In England and Wales the Bail Act 1976 begins from a right to bail: an accused person must be released unless the court finds substantial grounds for believing that, if released, they would fail to surrender, commit an offence, or interfere with witnesses, or that they need to be held for their own protection. The presumption is strong for lesser offences and reversed for the most serious, so that a person charged with murder must show why they should be released rather than the prosecution why they should be held. The grounds a court considers:

• •The nature and seriousness of the charge, and the likely sentence, since a person facing a long sentence has more reason to run
• •The strength of the evidence
• •The accused's character, record, community ties and previous compliance with bail
• •The risk to witnesses, victims and the public
• •Whether conditions could manage the risk: a curfew, residence at an address, surrender of a passport, reporting to a police station, an electronic tag, or an order not to contact named people

In England money is now rare in bail; a surety or a security, a sum deposited by the accused or a friend, may be required where flight is the concern, but most bail is on conditions alone. In the United States money is the system. Bail there is set as a sum the accused must pay or guarantee to be released, on the theory that they will return to recover it, and since most people cannot pay thousands of dollars at once, an industry of commercial bail bondsmen lends the sum for a non-refundable fee of about ten percent and hunts down those who abscond; the United States and the Philippines are the only countries that permit the trade. The consequence is that release depends on wealth. About 400,000 people in American jails on any day have not been convicted, most held because they could not afford bail, and studies find that people detained before trial plead guilty more often, lose jobs and housing, and receive longer sentences than similar people who were released. Several states have abolished cash bail for most offences since 2017, with contested results, and the argument between public safety and equal justice is one of the live political disputes in American law.

A person refused bail is remanded in custody and held in prison, separately in principle from convicted prisoners and often not in practice. In England around one prisoner in six is on remand, and the growth in that number, driven by court backlogs after 2020, is the reason prisons are full; a remand prisoner may wait over a year for trial and, if acquitted, receives nothing for the time. The law limits how long the wait may be, and the European Convention on Human Rights requires that anyone arrested be tried within a reasonable time or released, a provision that courts have used to free people held too long. The trade-off is never clean. Every well-publicised offence committed on bail produces a demand for tighter rules, and every wrongly detained person is the cost of them.

The bail decision is the point at which the presumption of innocence is tested in practice, since it asks whether the state may deprive of liberty a person it has not convicted. The answer in most democracies is yes, but only for reasons connected to the trial itself, flight, interference and danger, and not as punishment in advance, and only where lesser measures will not do. A system that detains on the basis of what a person can pay, or one that detains most of those it charges, has answered differently, whatever its statutes say, and the remand population of a country is a fair measure of how seriously it takes the words it prints on the presumption.

Bail is the release of an accused person while their case is pending, on a promise to return and usually on conditions, and the law in England presumes it unless there are substantial grounds to fear flight, further offences or interference with witnesses; the United States instead sets bail as money, so that release often depends on wealth and a commercial bond industry. Those refused bail are held on remand, unconvicted, and the size of that population is a test of how far the presumption of innocence reaches.