Unsecured Bail, Including 10% to the Court, or Any Other Partially Secured Deposit Bail Should Not Be Used—The Government Should Not Be in the Bail Collection Business

Unsecured bail, promising to forfeit a sum, does not work any better than a promise to appear in court or a release on own recognizance. It is also the key to the door by which governments begin siphoning and becoming dependent on such fee and fine revenue. In addition, the government unnecessarily turns itself into a collections agency by having to collect the 90% (in cases of 10% to the court) or up to 100% (pure unsecured bail, promise to forfeit an entire amount with no deposit) of the funds when a defendants’ bond is forfeited. The other problem is that unsecured bail creates an additional disincentive for someone to come back to court because they will have to pay the forfeited bail and may face a bail jumping or contempt of court charge when they come back.

Governments rarely collect these outstanding forfeited pledges. In addition, unsecured bail creates a façade of false hope by the public, prosecutors, and victims of crime who wrongly assume that a defendant had to have some skin in the game now, and not simply put up their name as security. The simple fact is the same person promising to pay the bail amount is the person who has failed to appear in court. What is the probability of either happening?

Instead, a judge should set an appropriate secured bail amount if necessary, and leave it at that. For those for whom an unsecured bail is set today, the vast, vast majority should be released on their own recognizance with a judge imposing a secured bail on some small percentage where they believe it is necessary. The defendant would then select how to post that bail, and would post 100% of it by using cash, property or surety. Credit card and other transaction fees should not be any greater than offsetting the cost of providing such services, and the bringing of cash and certified funds should not be denied and no fee may be charged.