Tracing the roots of Bail in various countries

The term Bail is extracted from the old French verb baillier which basically depicts to give or deliver. In Latin, the word bajulare means bearing a burden. The presence of this system can be delineated back in the period of approximately 377 B.C when Plato tried to create a bond for the release of Socrates. However, the modern system of bail developed from a concatenation of laws originating in the middle ages in England. In medieval England, the custom of bail developed to address the deplorable state of untied prisoners from a noxious state of diseases that were prevalent in jails while they were waiting in a queue for conduction of their delayed trials. Unfortunately, however, America’s laws were not set up to intentionally detain non-capital defendants and for limiting pre-trial freedom public safety was not even considered a valid reason. Accordingly, began a decade long second generation of bail reform that marked its focus on the boundaries and processes of intentional detention on whether public safety should be a valid contemplation in the process of bail. As manifested under Court Reform and Act of Criminal Procedure, 1970 and Federal Bail Reform Act of 1984 the second generation culminated in America’s ‘Big Fix’. Both laws attempted to provide with an extensive solution to both “bail” and “no bail”-

  1. Through a process of detention eligibility net in a way examining who should premeditatedly be released and who should be potentially detained.
  2. Taking into account the limiting process which is capable of dealing with cases of extreme risk, the scope of intentional detention was further narrowed down.
  3. Making an attempt to eradicate “unintentional detention” altogether through notable restraints on the application of money.[1]

Both the laws provided for a rationale and transparent in-or-out system with extensive limitations on intentional detentions along with the mechanisms designed to immediately effectuate the release decision without money. The Congress in the year 1984 contemplated that throughout the Bail Reforms Act it had displaced the word “Bail” with “Release” to remove confusion associated with equating the word bail solely with money.[2]

Bail – A materialistic divide

The social institution of bail as an offshoot of law has its own depth of philosophy. In ancient and most probably uncivilised society, the notion of bail did not experience that same level of momentum, but bail in times of civilised society shares the roots of utmost importance. The persistent significance of bail in matters of administration of justice cannot be questioned by anyone as it has its importance since historical times. The need for Bail reforms proves to be both historic as well as a challenging tool at hand. Bail is an instrument that is used to minimise the intervention of the court on the liberty of the defendant and at the same time assure the presence of accused in the Court with the aid of the bond. It is one of the predominant pathways which is used to administer the pre-trial process. This unequivocal instrument is used by the judges to ensure that the defendants are in a way detained for a period prior to their trial, this blunt instrument should be used by the judges in a most efficacious manner and not arbitrarily or capricious manner as the liberty of the defendant is attached to the strings of the bail system. The application of money bail in many cases proves to be associated with the matter of deleterious consequences for the accused where they thought of leaving from jail amidst pendency of their cases. This has in many cases resulted in an indefeasible status where many people are jailed unnecessarily and thus, raising the level of economic status also which is prevalent in defining pre-trial outcomes. In the similar vein of Veena Sethi v. State of Bihar Court emphasised on the preferential operation of the mechanism of bail and castigated that the prototype of rule of law which is the silver lining running throughout the Constitution does not discriminate between the haves and have nots for the simple reason that rights of all individuals are important and precious or to ensure the perpetuation of status quo but the rule of law also exists for the poor downtrodden sections of the society.

Arbitrary imposition of money bail

There is a phase of unjustified inequalities brewing up due to arbitrary imposition of money bail. Two otherwise similarly situated pre-trial detainee can have to face different repercussions based on whether one can afford to pay a cash bond or not.[3] An insurmountable situation arises in a pre-trial jail period as it impacts the defendant’s ability to plant an effective defence. Inappropriate application of money bail can expedite superfluously high rates of imprisonment and in a way escalate the inequalities hinged on the wealth and race throughout the criminal justice system. This particular provision of paying cash bonds creating the disparity also violates the constitutional provisions which cater for the needs of poor and weaker sections of the society who are standing last in the queue, it’s inherently arbitrary.

Pending the trial process, the court must decide whether the person can be unconditionally released, subsequently, their release should be made subject to a particular condition or amalgamation of conditions. The bone of contention is that imprisoning individuals on the cornerstone of wealth-based distinction is violative of constitutional provisions and the well-established principles of fairness and equity. A negative consequence of unnecessary jailing intensely puts the burden of cost on the criminal justice system.

The Hon’ble SC, in Kamlapati v State of West Bengal, explains bail as a method which is developed for harmonising two fundamental concepts of human value, the liberty as enjoyed by the accused and the interest of the public at large which in turn depends on the release of accused. In State of Rajasthan v. Balchand, the Hon’ble SC propounded that the fundamental rule is bail and not jail except where there are circumstances indicative of the facts that the accused can flee from the process of justice or he would be recurring his acts of offences or trying to intimidate the witnesses.

Analysing pre-trial detention from Cost-benefit Perspective

The direct costs associated to keep the pre-trial detainees in jail is non-trivial. In a case when defendant fails to appear the court needs to allocate resources to resolve the resulting warrants. Reckoning all the facts and circumstances of the case, the pre-trial release can open the door for the offender to commit another crime too. Attempts have been made to estimate the social value of a decision to release rather than detain a defendant. Evaluating the direct costs associated with jail avoided, increased likelihood of crime pre-trial, decreased likelihood of future crime and increased likelihood of failures to appear as a result of pre-trial release.[4] With each of the defendant released, these costs and benefits tend to balance out social benefit.


The criminal justice system witnesses bail as a growing part, more and more defendants are using commercial bonds as a way to secure their release. There are however extensive costs on the justice system. Nearly half a million people are in jail for allegedly convicting a crime without having been convicted which elaborately spells the tragic situation of the people who are being deprived of their freedom of liberty. The monetary bail has its impact which evidently falls on the shoulders of low-income category people disproportionately, they remain in jail for an extended period of time just because of the fact that they do not have sufficient money to incur the expenses of monetary bail. Furthermore, there is an increment in the likelihood of conviction due to the assignment of financial bail thus, extrapolating guilty pleas and the cost is incurred on both individuals and the society. Instead of monetary bail a risk assessment method needs to be adapted while taking into account the factors of defendant’s potential public safety risk and the risk of appearance of defendant in the court of Law, however, bail is a rule and jail is an exception and for following this constitutional, rule wealth-based distinction should be eliminated. Therefore, the s. 436 of Cr.P.C, 1973 needs reconsideration as to the bail on monetary footboard so that the poor cannot be penalised and a neutral risk assessment method should be evolved.

[1] Schnacke, Model Bail Laws, at 66-85.

[2] S. REP. No. 98-225, at 4 (1984).

[3] Rakesh Kochhar & Richard Fry, Pew Research Ctr., End of Great Recession: Ethnic lines, Dec. 12, 2014.

[4] Dobbie, Goldin, and Yang (2018).

About the Author, Simran [2017-22] is pursuing B.A.LL.B (Hons) from Maharashtra National Law University, Nagpur.

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