Bail is an amount of money or property given to the court, or a set of terms agreed upon by the defendant with the court, that allows them to go free while they await their trial date. In the United States, most commonly, bail is a cash bail or bail bond. Cash bail is more common in some countries, while in others, the defendant must agree to terms they will abide by while awaiting the trial that decides their guilt or innocence.
Bail is typically required because of the concern that suspects won’t show up for their court hearings. By setting bail, a judge hopes to ensure that the suspect has enough incentive to appear in court. For instance, if the suspect has a cash bail, they will lose out on the money should they fail to appear, but the money will be returned if they do appear. If they have a bail bond, they will be liable to the bail bondsman, whose agents may pursue them in order to get them to appear in court.
There are two ways a suspect may obtain release from jail while awaiting trial. They may either:
- Sign an agreement promising to return for their court hearing (this is also known as being released on your own recognizance, or O.R.), and
- Make a bail payment, either with their own funds or by getting a bail bond.
They way bail is set depends on the seriousness of the crime. In general, once the suspect is arrested, they must first be “booked” at the jail. At this point, your personal information and information about the crime will be recorded, and your criminal record, if any, will be searched. Your fingerprints and photo will be taken, your personal belongings confiscated, and you will be placed in a holding cell.
If the crime is a lesser one, it may be possible for you to post bail immediately. For these types of crimes, states generally have their own “bail schedules,” which set bails for different types of crimes. If the suspect can’t afford the bail, they may have to wait for a hearing before a judge to ask that it be lowered.
When the crime is more serious, the suspect must also appear before a judge to determine bail. This may be at a bail hearing, or at an “arraignment,” which is often the first court appearance for a defendant, at which the charges against them are read.
At this hearing, you and your lawyer may ask for low bail, or that you be released on your own recognizance (O.R.). In making their decision, the judge will consider the following:
- How serious in nature the charges against you are;
- Whether you pose a threat to others if you are released;
- Your criminal history;
- Whether, if you have previously been given bail, you complied with its terms;
- Your mental and physical health; and
- Whether you have any local ties, such as family or work.
The judge does not have to grant O.R. or a low bail, but they may give an excessive bail, as this would violate the 8th amendment to the U.S. Constitution. However, it has been held constitutional in the past for a judge to set a very high bail in cases where the defendant is believed to be very dangerous.
Just because bail may not be excessive does not mean that bail must be granted at all. Depending on the state where you live/are arrested, the law may not allow bail for certain types of crimes, particularly for violent crimes. The judge may also deny bail if they believe you would be a threat to others if released.
You must, of course, appear at your hearings and trial. The court may also require some other conditions along with your bail agreement. Such conditions might include that you:
- Not travel outside of a certain geographic area;
- Avoid drugs and alcohol and submit to testing;
- Surrender firearms (for the time being); or
- Submit to counseling.
Violation of the conditions, just like failure to appear in court, make you subject to arrest, and render your bail agreement void. You may also face further charges for failing to appear in court, which is a separate crime in some jurisdictions.
Bail bonds can be purchased by those who cannot cover the cost of bail on their own. Usually, the cost is about 10-20% of the total bail cost. You pay this to the bond agency, who agrees to cover your bail. Should you then fail to appear, the bond agency is on the hook for your entire bail cost.
You should be aware that most states regulate the bond business, and place limits on how much an agent can charge for a bond. Take care not to overpay.
As stated above, if you fail to appear on a court date, the bond agency must pay your bail. If this happens, the judge will often set a “forfeiture date,” which is the date the agency must pay your bond if you don’t turn yourself in.
If this happens, your bond agency likely has the authority to locate and arrest you and bring you back in to appear in court.
Any time you are arrested and face criminal charges, it is wise to consult with a criminal defense lawyer as soon as possible. The lawyer can help you negotiate bail, and can explain to you how it works.