Bail Should Not Be Used As A Collections Mechanism and If it Is, the Priority Should be that All Funds Are First Transmitted to the Direct Victims of the Crime, Including Indemnitors


Many states have policies that allow for bail to be used as a collections mechanism.

These include setting cash-only bonds and 10% to the court bonds that then go into the coffers of the courts themselves or to special funds. Bail upon conviction, in many places, is simply kept. That is not the purpose of bail.

Instead, all deposits should be returned to the defendant upon conviction unless a prosecutor makes a showing, by a preponderance of the evidence, that the keeping of the funds is necessary to serve a legitimate and important state purpose. No bail moneys may be kept automatically and without individual consideration by a judicial officer and a motion band proof by the state that the immediate taking of the funds is necessary.

Forfeited bails, whether from a compensated surety, cash, 10% or unsecured bonds, should not go directly to the coffers of the court system because such creates an appearance of impropriety and could create an impermissible incentive that is outside the purposes for which bail is set. Forfeited bails should go the general fund or for some other purposes that is not the funding of the court system to remove any appearance of impropriety or potential conflict of interest.

All statutes that allow for the keeping of bail by the government, whether forfeited bails or cash or 10% bails kept upon conviction, should first prioritize that any and all such funds should first go directly to compensating the direct victim of such crime, including those who indemnify such victims. Only then should such funds be used for other purposes.

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4th Generation of Bail Reform

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The 4th Generation of Bail Reform Thirty four years after the federal government embarked on this grand risk-based bail experiment, an experiment which no one thought constitutional at the time, it is now time instead for a fourth generation of bail reform. One that returns the American bail system into what it is supposed to be. A bail bond which is solely based on the defendant’s appearance in which judges set appropriate bail that balances the rights of the victim of crime, the person accused of the crime, and the people who seek to prosecute the accused.5.22 MB11-21-2018 DownloadPreview