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During the writing of the Constitution, the practice in England at the time of the drafting of the U.S.Constitution was that people arrested and awaiting trial were usually released by depositing money or title to property with the court. Defaulting on a trial resulted in forfeiture of money and property. This philosophy is referred to as "bail". It is a guarantee that a released person will appear for trial (such as a pledge of money or property). In the event that the defendant does not appear in court, the bail will be forfeited to the court. People who are held in pretrial detention can be released on bail while ensuring that they will return to court on their assigned date. In exchange for some form of security, those who have been arrested and are awaiting trial can be released on bail. The person or a third party acting on their behalf may provide security in the form of cash, assets, or a bond. A defendant posting bond guarantees his or her appearance in court for all court hearings, including the trial.

According to Lippmann in the textbook "Criminal Procedures", "This philosophy has led to the modern court practice known as posting bail. The U.S. Constitution provides for bail in the Eighth Amendment, which states that "excessive bail shall not be required." This bail provision has not been incorporated into the Due Process Clause of the Fourteenth Amendment. Most state constitutions, however, create a right to bail in all but capital cases. The fundamental nature of bail was recognized by the U.S. Supreme Court in Schilb v. Kuebel, in which the Court observed that "bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment" (Schilb v. Kuebel, 404 U.S. 357, 365 [1971])."(Lippmann, pg.545). People are presumed innocent until and unless proven guilty under the presumption of innocence, which is the basis for bail. Therefore, people shouldn't be taken into custody before trial unless it is urgently necessary to do so. An individual's right to liberty is balanced with the necessity of ensuring their appearance at court through bail. Defaulting on a court appearance results in the forfeiture of the bond to the court. Taking advantage of this financial incentive will encourage the person to adhere to the terms of their release and appear in court. If a defendant honors all court appearances and obligations, the bail is returned to them or the person who deposited it on their behalf at the end of the legal process.

Though bail systems have existed for centuries and are meant to promote justice in the criminal justice system, they do not come without their detractors. According to some, it may result in unfair outcomes for those who cannot afford bail, placing them in pretrial custody merely based on their ability to pay. The impact of this is likely to be disproportionately felt by people of color and those with low incomes. Bail bond agencies charge people who cannot pay the entire bail sum fees to get a bond, which has raised concerns over the commercialization of bail bonds.

In essence, the criminal justice system relies heavily on bail to release people while they await trial, but systemic reforms are needed to address inequalities and ensure reasonable and equitable pretrial release decisions. A bail system plays a crucial and longstanding role in the U.S. judicial system, bringing together the interests of the court and an individual's right to freedom. A bail order safeguards the presumption of innocence until proven guilty based on historical practices and judicial precedents.