Bailing Us Out: A Look at the Cash Bail System

Rob McGuire

By Rob Mcguire

To truly honor the presumption of innocence is not to charge a fee for admission to the presumption.

If you are charged with an offense in Tennessee, other than capital murder, you are entitled to a bail amount set by a neutral magistrate. While the bail amounts set in each jurisdiction will vary (and, sometimes, questionably so) the idea is that the more serious charges require a higher bail amount. No matter the bail amount, if a person can provide a property bond through the clerk’s office or hire the services of a professional bondsman, the accused will be released from custody. Professional bonding companies are consistently in the business of helping defendants make a bond. Most companies charge a 10 percent premium on the bond amount as their fee for acting as a surety. It usually works like this: if a person is arrested and their bond amount is set by the magistrate at $5,000 then a person’s family will pay the bonding company $500 in a non-refundable premium. The bonding company posts the rest with the clerk’s office and the person is released. If the accused makes all their court appearances then, at the conclusion of the case, the bond is released. The bonding company takes the premium as a profit having expended no additional resources other than the promise to pay $5,000 to the court if the defendant fails to show up to court.

In practicality, even if the accused fails to show up to court the court does not immediately demand the bonding company pay the surety. Bonding companies are routinely given a year (or more) before a ”final forfeit” gets taken on a person who does not come to court. In the interim, if the bonding company can locate the individual and bring them into custody then they can be released from the bond (and still keep the premium). Contracts with bonding companies are private and the criminal courts have some oversight but, generally, the matter is settled between the accused and their bonding company (usually ending in a resolution in the bonding companies’ favor).

Bonding companies are a necessary tool in the arsenal of a criminal defense attorney. Bonding companies are, by and large, responsible actors who want their clients to come to court and are incentivized to retrieve clients who fail to appear. However, with all that in mind, is it time to consider whether the criminal justice system can move past a money bail system? For several major jurisdictions the answer is yes. New York City, perhaps the largest criminal justice system in the country, is slowly but surely doing away with money bail. Even in Nashville-Davidson County city leaders including the Davidson County Sheriff’s Office have increased the use of pretrial services which allows some defendants to “ make bond” without having to pay a premium to a professional bonding company. The system in Nashville works primarily based on an assessment system that allows criminal justice professionals to assess the individual defendant’s history, the charged offense, the potential danger to the community if the individual is released and recommend to the court a release to the pretrial services program. This is not the same thing as a “release on recognizance” bond or a promise by the accused to return. Rather, pretrial services provide support for the accused and also reasonable safeguards (such as random drug and alcohol testing) to ensure the safety of the community.

Money bail has advantages to the criminal justice system in that criminal defendants are required to “invest” in their release and further gives incentive to a private industry to return the defendant to custody if they fail to appear. Several significant studies, however, have illustrated how the money bail system falls disproportionately on the poor and forces indigent defendants into perilous decisions– such as pleading guilty to be released instead of persisting in their innocence in a righteous cause – that must give every criminal practitioner and citizen pause. To truly honor the presumption of innocence is not to charge a fee for admission to the presumption. Critical investigation of the money bail system is underway in Davidson County and senior policy leaders in law enforcement and indigent defense are in discussions about how to guarantee the public safety and concomitantly guarantee that the presumption of innocence is not available only to the well off. Here’s hoping that a policy emerges that keeps the public safe and allows the quick retrieval of those who would run from their court responsibilities but also safeguards the innocent poor who can easily be ground into the gears of our system.


Rob McGuire, a certified criminal trial specialist and criminal defense attorney in Nashville, spent over a decade as a prosecutor in Davidson County handling some of the most complex cases pursued by the DA’s office. As a gang prosecutor, he routinely worked with federal agents and prosecutors. Now, in private practice, Rob represents clients in criminal defense matters in state and federal court. He is certified as a criminal trial specialist by the National Board of Trial Advocacy and is an adjunct professor of law at Belmont Law School. He lives in Nashville with his two children.