Commercial Bail Aligns with the American Bar Association

Opponents of the private sector insurance business of commercial bail bonding often attempt to justify their position by claiming support from the American Bar Association (ABA).  It appears, upon examination however, that on principle the ABA and commercial bail are not so at odds as the “free bail” champions would have you believe.

First though, a personal disclaimer: while I have long been associated with the commercial bail side of the equation and am considered by some as a qualified spokesperson for it, I cannot claim the same privilege when it comes to the ABA. I have been a proud member of that organization for many years and have even written articles on bail published by it, but I still cannot presume to speak for them on the issue made the subject of this piece. I believe that authority resides exclusively within the confines of the ABA Criminal Justice Standards Committee.

That having been said, I nevertheless believe that my analysis of the agreement in principle that exists between the ABA and commercial bail on best practices of pretrial release is sound and so I offer it here for the reader’s consideration.

The central question is: what method of release pending trial, currently in existence, best meets American justice system requirements?

I believe that a good case can be made for the proposition that the ABA’s combined pronouncements would require the answer to be: commercial bail.

Here is how I arrived at that conclusion: The Third Edition of the ABA Pretrial Release Standards provides at the outset and as a background for all that follows, that the purposes of the pretrial release decision are the three basic elements found in ABA Pretrial Release Standard 10-1.1, which are:


     A. “PROVIDING DUE PROCESS OF THOSE ACCUSED OF CRIME.”
          The heart of this is, of course, the Eighth Amendment to our U.S. Constitution providing  
          that bail shall not be excessive.  Commercial bail could not agree more and lobbies right
          alongside the ABA for bail being set in “reasonable” amounts, certainly not more in a given
          case than that calculated to ensure the appearance of the accused as directed.


     B. “MAINTAINING THE INTEGRITY OF THE JUDICIAL PROCESS BY SECURING  
          DEFENDANTS FOR TRIAL.”
          Every major study on the subject of appearance rate comparisons among all the various release
          methodologies always has commercial bail being superior to any others.


     C. “PROTECTING VICTIMS, WITNESSES, AND THE COMMUNITY FROM THREATS,
          DANGERS OR INTERFERENCE.”
          Again, all credible studies demonstrate that the misconduct rates of released subjects is lower
          for those released via the commercial bail bond system.


In essence, then, there we have it. The primary qualification is: that method of release which satisfies the requirement of the Eighth Amendment gets defendants to court for disposition of the charges against them and affords the highest degree of public safety.

The hands-down winner is the commercial bail system. Some other approach may satisfy one of these three requirements. For example: the unsecured own recognizance release approach may satisfy the “no excessive bail” restriction, but no method apart from secured release as provided exclusively by commercial bail accomplishes all three objectives: (1) fairness to the defendant, (2) fairness to the court and (3) fairness to the community. And all three of these, combined, represent what the ABA says must be in place for all around justice to occur.