Bail is a concept that many folks take for granted. Simply put, those who are arrested can be freed while they await trial by paying bail. But how did this system come about? Indeed, the earliest Louisiana Constitution provided a right to bail as release on a promise to pay if one failed to return to face charges…rather than having to pay up front.
As Edward Livingston, Louisiana’s foremost nineteenth century legal thinker, put it: “As it would be oppressive in most cases to deprive the accused of his liberty before trial, if he can give sufficient pledge for his appearance at the trial, the law restores him his liberty on his giving such a pledge. This pledge is called bail. When bail is given, the prisoner must be discharged without extracting from him the payment of any fees.”
How did bail so dramatically change from this original conception? Today, The Data Center is releasing the next in our series of briefs we are calling The New Orleans Prosperity Index: Tricentennial Collection. This brief describes bail across the city’s 300-year history and how it morphed to the present-day system of money bail. It then explains the processes and costs of modern money bail. Finally, it offers models from jurisdictions that have rejected money-based detention as inconsistent with the core principle of innocent until proven guilty.
This essay is contributed by Flozell Daniels, Jr. of Foundation for Louisiana, and Ben Weber and Jon Wool of the Vera Institute of Justice.
