Bail at the Bar

      For most people charged with a criminal offense, the top priority is their release from jail. It's a hierarchy of needs– protestations of innocence, lawyers, trials—all those issues follow the primal urge to escape the confines of incarceration. The rest will come later. Around these parts, release usually involves making bail.

            We've talked about bail before, but I'd like to spend some time focusing on the development of the idea in the United States.

            Black’s Law Dictionary defines “bail” as “the surety who procures the release of a person under arrest by becoming responsible for his appearance at the time and place designated.” In practice, we tend to think of bail as the amount of money that must be pledged to secure a defendant's release pending the disposition of the case. A "bail bond" is a written promise that the defendant will, while at liberty, appear as required or that the signers of the bond will pay the amount of money specified in the order fixing bail.

            Black's definition of bail is personal. It hearkens to an Anglo-Saxon notion and a time when English society was clannish. Justice was private, an affair between individuals. The government did not prosecute crimes. Individuals did. To prevent blood feuds, a system of personal remuneration emerged. Values were established for the loss of lives, limbs, or livelihood (a weregild or bot). Guilty parties were expected to pay. To guard against flight, the defendant was required to find a clan member to act as surety. The sponsor's pledge equaled the amount of the penalty.

            With the arrival of the Normans, things got muddied. Law enforcement increasingly became the responsibility of the royal authorities. Corporal punishments, rather than remuneration, became accepted practice. Accurately setting the value of bail, as punishments moved away from cash payments to mutilation, (ear notching, branding, incarceration) became harder. The Normans also identified classes of offenses that they considered non-bailable. Contraction and expansion of bail followed through the ensuing centuries. Parliament stepped in when over-zealous or corrupt local authorities limited the access to bail. For example, local judges sometimes thwarted the pre-trial detention laws by setting unaffordable bail amounts. To safeguard against this, the English Bill of Rights stated that excessive bail ought not to be required. A similar phrase was written into the Eighth Amendment to the United States Constitution.

            The English bail system that emerged contained a pledge to appear, enforced by the threat of a reasonable penalty due upon failure. Exceptions were carved to continue incarceration for a variety of cases.

            The colonists carried the English notions of bail to America. Most states, however, wrote liberal laws regarding bail. Most of the English exceptions were ignored. This makes sense. Jails were expensive to maintain. Law enforcement resources were sparse. Keeping all but the most dangerous pre-trial defendants incarcerated was a difficult task. Colonists, furthermore, fled an oppressive government. The Federal Judiciary Act, enacted in 1789, and most state constitutions provided an absolute right to bail in all except capital cases.

            The English bail system transported to America encountered a new problem. Think back to that definition of bail from Black’s Law Dictionary. It incorporates the Anglo-Saxon notion that bail is a pledge by a person that the defendant shall appear. In the tight-knit communities of medieval England, a friend or clansman pledged attendance. Although nearly all crimes were bailable in the United States, who would pledge? On the frontier, most defendants lacked close friends or relatives to act as the personal custodian for the charged individual, especially when flight was readily an option. Sanctuary was always to the west. The combination of problems presented an entrepreneurial opportunity. The commercial bail bond business emerged in the United States.

Kai Schreiber, CC BY-SA 2.0 <https://creativecommons.org/

The brothers, Pete and Tom McDonough, are usually credited with establishing the first bail bond business. The two ran their father's bar located at the corner of Clay and Kearney streets in San Francisco. The saloon stood near the Hall of Justice.

As a result, it served as a convenient watering hole for local attorneys. When a client got arrested, the bar owners began running down to the courthouse to make a defendant's bail. If the lawyer didn't have to leave "The Corner" to secure his client's release, he could keep drinking. When the brothers learned that the attorneys charged a fee for the bond, they saw the business opportunity. The McDonough brothers expanded the service, making the bail for non-drinking patrons.

            The McDonoughs developed an elaborate system of wireless communication. When an outlying jurisdiction made an arrest, they would be alerted. A payment, here and there, helped with access. Within minutes they would find a judge, secure an order setting bail, and post the cash. The defendant would be released, poorer for McDonough’s efforts. The business became known as “The Old Lady of Kearney Street.” Time Magazine once wrote:

"The Old Lady helped San Francisco be what many a citizen wanted it to be – a wide open town. She furnished bail by the gross to bookmakers and prostitutes, kept a taxi waiting at the door to whisk them out of jail and back to work."^†

            Not surprisingly, the McDonough brothers expanded into corruption and bribery. A local grand jury once reported,

"No one can conduct a prostitution or gambling enterprise in San Francisco without the approval, direct or indirect, of the McDonough brothers."^†

            Pete McDonough was convicted of bootlegging during Prohibition. Later, he was stripped of his bail bond license. The business closed. As the San Francisco Chronicle noted:

"The Old Lady … will take to her rocking chair, draw her shawl about her … But many a citizen thought simply: Good riddance."^†

            The commercial bail bond industry's original establishment retired. The Old Lady may have gone away, but she created a uniquely American business.

            Until next time.

^† (For the quotations, I am indebted to Corruption Central @Found SF.org and Schnacke, Jones, and Brooker, "The History of Bail and PreTrial Release")