Statutes Should Not Allow for Restricting How A Bail is Posted— Defendants Should Have a Fundamental Right to Choose How to Post Bail
Judges should not impose di erent bail amounts, higher or lower, depending on how a defendant or third-party indemnitor chooses to post bail. In many states, courts have the power to impose cash-only bonds, which deprive the defendant of the right, as recognized by the U.S. Supreme Court, to enter into an indemnity contract for bail or to post property.
Instead, the bail should be set in an appropriate amount, and a defendant may then select from cash, property or surety. As noted, there should be no unsecured and/or 10% to the court bonds—the court should make a decision as to whether a secured bond is necessary, and if not the person is released on their own recognizance. If the state has an interest in restricting that choice, a prosecutor should have to make a showing on the record that a particular method of posting bond is necessary, and a judge should have to sign on o on that request.
