“A man of courage never needs weapons, but he may need bail.”
— Lewis Mumford
“Bail is security for the appearance of an accused to appear and answer to a specific criminal or quasi-criminal charge.”
— Ohio Revised Code,
In any high-profile or sensational case, media outlets are sure to report the dollar amount that the court sets as bail. The amount of bail is viewed as a barometer of the seriousness of the crime or the danger the defendant poses to the community.
The concept of bail originated in medieval England, where sheriffs possessed the authority to decide which persons should be held and which should be released. The Magna Carta, the Habeas Corpus Act of 1679 and the English Bill of Rights transferred power away from sheriffs and deposited that power with courts or independent magistrates. The byproduct of this English development was the Eighth Amendment to the U.S. Constitution which states that “excessive bail shall not be required.”
Under Ohio law, the amount of bail is left entirely to the discretion of the court. The purpose in setting that bail is not to punish the offender. Why? Because at the stage of the proceeding where bail is set — the initial hearing — the court has yet to determine whether the offender is guilty of any offense. The law says nothing about increasing the amount of bail if a person is deemed dangerous. Higher amounts of bail in more serious cases are justified because the more serious the penalties, the more motivation a person has to flee.
For nearly two decades, the law in Ohio has allowed courts to hold accused persons without bail if three conditions are met. First, the state must show that “the proof is evident or the presumption great that the accused committed the offense with which the accused is charged.” Second, the state must show that “the accused poses a substantial risk of serious physical harm to any person or to the community.” Third, the state must show that “no release conditions will reasonably assure the safety of that person and the community.”
Bail can be met by depositing money with the court, by posting bonds in the amount of bail, by posting a lien or mortgage against real property or by getting someone else — usually a bail bondsman — to post 10 percent of the bond amount and guaranteeing the rest.
The bail system does not apply to juvenile offenders. Juveniles, by nature of their age and limited or non-existent work history, are presumed not to have the financial resources to make bail and therefore the posting of bail is not a good way of assuring their appearance in court. Further, juveniles have a parent or guardian who can also assist in making sure they appear. In the juvenile system, the court has the authority to order the juvenile held or released and may hold juveniles if they pose a risk of flight or a danger of causing additional harm.
A person who fails to appear for a hearing can be charged with a new criminal offense. In some cases, the crime of failing to appear is more serious than the crime that led to the original charge. A person who posts bail through a bail bondsman and then fails to appear also runs the risk of being sought by a bounty hunter hired by the bonding company. Any person who “jumps” bail is likely to have a warrant issued for their arrest.
Although many persons charged with minor offenses will be released “on their own recognizance” (a promise to appear at the next hearing) without a monetary bail amount, the setting of bail remains the primary method for ensuring the attendance at future court hearings of defendants charged with serious crimes.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.