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Getting released before a trial – what it involves

Securing freedom from incarceration might sound like a great idea and something you should actively work towards achieving, but there is a sense of accountability that the situation brings and if the defendant adopts an irresponsible attitude and criminal mind set, we might well have a fugitive from justice on our hands. Then there are valid considerations about who funds the pretrial release that need to be debated.

In a scenario where the defendant has jumped bail, contrary to popular belief it is not the police or courts that will be thrown into a tizzy; they are least likely to prioritize the defendant’s re-arrest and incarceration. The burden of prioritizing the defendant’s arrest usually falls on the bail bondsman. For the bondsman, if he has to stay in business, a healthy 95% of his clientele (accused out on bail) have to stay true to their promise to appear in court on the dates of their hearings. If more than 5% of a bondsman’s clients skip bail and don’t keep their tryst with the courts, it will ruin the bondsman’s business.

Almost all bail bondsmen weigh the risks before deciding to post bail. Where the risks are inherently higher the bondsman may ask, sometimes insist, on collateral of the defendants property or property belonging to a co-signer. That way, even if the defendant jumps bail, the bondsman will have recourse to the collateral for making up the amount that he is liable to pay the court.

Almost all the pre-trial sessions involving violent crimes is funded using taxpayer’s money and normally no individual is held financially answerable for the defendant and the crimes he has been accused of. That is why commercial bail is gradually gaining prominence and it is undoubtedly the superior option. Figuratively, and literally our taxpayer’s dollars are funding the release of potentially violent and dangerous thugs on to our streets and societies. This has been confirmed by surveys conducted by no less a powerful body than the American Legislative Council (ALEC).

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If we were to examine the benefits of pre-trial release to commercial bail, the latter would win hands down. Here we examine some of the valid questions that people ask regarding pretrial release. Answers point to the necessity of encouraging a paradigm shift to commercial bailing.

1. How is the pretrial release executed?

Usually the local government authority arranges to release the criminal defendants from incarceration without extracting or associating any financial penalties from the defendant.

2. Who funds the pretrial release?

The average pretrial program needs funding to the tune of $1 million or more, and much of that is sourced from local taxes that ordinary citizens pay.

3. When and under what circumstances is a pretrial release ordered?

Initially the release targeted defendants arrested in petty crimes, especially when the defendant couldn’t afford bail, but as of now that stands extended to more violent crimes even where the defendant can afford bail.

4. Do pretrial released defendants keep their court dates?

In many cases defendants fail to turn up in court and become fugitives from justice.

5. Who becomes responsible when defendants fail to turn up in court?

It is difficult to hold any person financially responsible because release was not linked to commercial bail.

6. Who is responsible for tracking down fugitive defendants?

Even though it is up to the local police to track down and apprehend the criminals, the issue continues to attract lower priority as far as law enforcement is concerned.

7. What is the legitimate alternative to pre-trial release?

Undoubtedly it is commercial bail and we can state that with a higher degree of confidence because only a very small percentage of defendants skip bail when there is a commercial consideration underlying the bail bond. The best argument is that it doesn’t dip into the taxpayer’s dollars.

The law generally favors pretrial release of defendants till such time court appearances are scheduled and the trial dates are finalized, and judges release the accused so as not to deprive them of the liberty that is their right before the crime is proved. Release is also a means afforded to the defendant to provide for his family and gather resources to defend the charges. But since instances are increasing of abuse of liberty by the accused in serious crimes, gradually the system is shifting in favor of conditional commercial bail secured by valid collateral.

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