The meaning and purpose of bail or bond is perhaps the most misunderstood concept in our criminal justice system. The general public does not understand it and sometimes judges, attorneys, and district attorneys forget its purpose. The concept is simple, but its application and use can be confusing and misleading.
The purpose of a bond is simply to assure a defendant’s appearance in court throughout the prosecution process. Its purpose is not to punish. We should never punish anyone until they have been proven guilty in a court by a judge or jury. Remember, we are all innocent until proven guilty. This is the difference between living in a free society and perhaps a communist type country. This is why our state law requires that upon an arrest of an individual the judge, magistrate, or clerk, whoever is setting the bond, should try first to see if the defendant can be released without having to make any bond at all.
This is called releasing someone on their own recognizance or what is commonly called ROR. The law says that a bond should be set only when the appearance of the person cannot be assured without it. Then, if a bond is required, the law says that it should be set as low as possible to assure the persons appearance in court. At the arraignment, or at any time bond is considered, the district attorney (State), defendant’s attorney, or the defendant can make arguments before the judge for or against a bond. Furthermore, every defendant is constitutionally guaranteed a bond except in capital cases involving murder or perhaps treason.
Let me give you an example of how the typical bond process works. In my example, our old friend Coach Little, since being fired from his position as head coach of the greatest football powerhouse in the country, is caught stealing video tape of last year’s games in hopes of using them in his new position with a different team.
He is booked into the McNairy County jail and charged with theft of property. Mr. Little is brought before me for arraignment on Monday morning. I inform Mr. Little of his rights, inform him of what he’s charged with, and then I consider his bond. He has a previous charge of DUI for which he pled guilty to last year. He appeared every time court was set in that case and has never had a failure to appear (FTA) charge against him. He is currently employed and lives in Selmer. He has hired an attorney to represent him. I don’t find that Mr. Little is a flight risk, someone that has a high probability of not coming back to court. Therefore, pursuant to the above mentioned laws, I release Mr. Little on his own recognizance. In my example, if Mr. Little had one or more prior failure to appear charges and lived in California, I would probably have set a bond to assure his appearance. Even then, however, I would follow the law and set the bond as low as possible to assure his appearance.
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