“Habeas corpus” is a legal term that is still expressed in Latin, and which is literally translated as something along the lines of “you should present the body [of the detainee] to the court”. It represents something fundamental in American law and the values that underpin it, which is that a person is innocent until proven guilty, and Constitutionally, a person cannot be detained indefinitely, or for an excessive amount of time.
But of course, the Constitution doesn’t specify what this actually means in practice, and what length of time is too long to keep someone detained ahead of the trial that is intended to determine their guilt or innocence. Some states have put in place time limits on pre-trial jail time, but most have not. In what may be one of the most extreme cases, an arrestee in New York City spent almost seven years in Rikers Island awaiting trial (he eventually took a plea deal for 13 years in state prison, with the seven years already spent behind bars credited to him as time served).
This is obviously an outlier, and most people arrested can expect to spend anywhere from a few days to a few weeks in jail if they are not able to (or not given the opportunity to) post bail to secure their release.
Law enforcement’s ability to hold someone before a trial is clearly necessary in some cases, since there are always people who would choose to avoid a trial if given the chance for release. It is natural to assume that the majority of those cases involve a guilty party who has a reasonable and rational expectation that a trial will result in them being locked up for a significantly longer time.
There are a couple of factors that may contribute to longer than usual pretrial detention periods. One may be a backlog in the criminal justice system, in which there simply aren’t enough judges and other officers of the court to consider release opportunities (including posting bail) for those arrested. A second may be complications or complexities in the case in question – perhaps there is a large amount of evidence being collected by investigators that must be completed before the trial gets underway.
Whatever the factors and the likelihood of an extended stay behind bars, we contend that even a few hours is more than enough time to spend in this situation for most people, and that pretrial release should be the goal of anyone arrested on any charge. And while cash bail remains a tool of the criminal justice system, bail bonds provide an opportunity for release for those that wouldn’t otherwise be able to attain it.
If you’re considering whether to seek a bail bond for a loved one who has been arrested, and are thinking through the cost of bond, you also need to consider the non-obvious costs of detention. Longer pretrial detention is correlated with longer jail and prison terms and increased rates of recidivism, which may be related to the exposure that detainees have to other criminals as well as an inability to suitably prepare for trial and have access to family and legal support during this time.