Bail is a set of terms or restrictions that are set by the court and that allow a criminal defendant to go free while awaiting trial. The terms are intended to ensure a defendant appears for court when required for trial or other pre-trial hearings. Bail is usually in the form of cash bail or a bail bond. 

Cash bail is where the defendant deposits money or property with the court that is returned after the defendant has made all of their required court appearances. If they do not appear the money will not be returned. The promise of the money being returned is the incentive for the defendant to appear for all of their court appearances.

Bail bonds are similar to cash bail, but the money is provided by a third party known as a “bail bondsman.” The defendant agrees to appear in court when required or else be liable to the bail bondsman for the amount of bail set by the court. If the defendant fails to appear, the bail bondsman or their agents can track them down and bring them to court. 

Defendants can also be allowed to go free before trial without posting any cash bail or enlisting the help of a bail bondsman. This is called being released on their own recognizance and is only used when the court is confident that the defendant will appear in court even without any financial incentive.

How Do They Work?

When a person is arrested for a crime they are detained until they can go before a judge and enter a plea of guilty or not guilty. When a criminal defendant pleads not guilty they are given a date to return to court for trial. In cases where the defendant is unlikely to pose a danger to others if they are released pending trial, the court may release them “on bail.” 

The judge will set bail at a certain amount and it is up to the defendant to deposit that amount of money (or property valued at the amount set by the court) with the court. There, it will remain until the defendant has made all of their required court appearances.

In many cases criminal defendants do not have access to the amount of money required for their bail. Instead they can contract with a bail bondsman and purchase a bail bond, typically for 10% of the bail amount. The bail bondsman agrees to cover the entire cost of the bail if the defendant does not appear for scheduled court appearances. The bail bondsman employs agents who will track down and make sure defendants appear in court. The bail bondsman keeps the 10% fee as profit. 

For example, a criminal defendant is charged with a crime and bail is set at $1,000. The defendant does not have $1,000, so they pay a local bail bondsman $100. The bail bondsman agrees to pay the court the full $1,000 if the defendant does not appear for trial. If the defendant appears when they are supposed to, the bail bondsman keeps the $100 and no one owes any additional money. If the defendant does not appear, the bail bondsman will first try to track them down and bring them to court. If they cannot find the defendant they must pay the court $1,000. 

Some states have bail bonds, but do not allow bail bondsmen to do business. In those jurisdictions defendants are able to pay 10% of the bail amount to the court. If the defendant does not appear when they are required, the other 90% must be paid by whoever paid the 10% deposit.

What Is Bail Bond Forfeiture?

If a defendant fails to appear in court when required, the bail bondsman must pay the full amount of the bail. The court will set a forfeiture date and if the defendant cannot be located and made to appear by that date, the full payment will be due. Any money or property deposited with the court or bail bond agency will be forfeited by the defendant. The court will issue a warrant for the defendant’s arrest.

In most places where bail bondsmen do business, they have the authority to locate and arrest the defendant after the court sets a forfeiture date. 

How is Bail Set?

When setting bail, one of the first things the judge will consider is the seriousness of the crime being charged. In cases where the crime was very serious, bail will be set very high (if it is granted at all). The judge will also consider the defendant’s criminal history. Defendants who have a history of committing serious crimes will have a higher bail. 

The judge will also assess the likelihood that the defendant will make their scheduled court appearances. If the judge thinks the defendant is very likely to appear, bail might be set at a lower amount. Defendants who have a history of missing court appearances or are considered a “flight risk” will have a higher bail.

Can a Judge Deny Bail?

In many jurisdictions judges have a lot of discretion when deciding whether a defendant will be released on bail and what the bail amount will be. If a judge considers the defendant to be a “flight risk,” or likely to miss their court dates, they might deny bail entirely. 

Defendants who have been accused of committing serious crimes or who have a history of committing serious crimes may also be denied bail. Generally if a defendant has been charged with a crime that is punishable by the death penalty, bail will be denied.

Some jurisdictions have tried to standardize or limit bail amounts depending on characteristics of the defendant such as age and criminal history.

The Eighth Amendment to the United States Constitution prohibits excessive bail. Bail cannot be used as punishment or to raise money for the court. Its purpose is to allow for pre-trial release while providing an incentive for the defendant to appear in court when required.

Are there Conditions for Bail?

In addition to paying the bail amount, defendants are often required to comply with certain conditions. One of the most common is that they do not violate any laws. Defendants might also be prohibited from contacting the victim of the alleged crime. 

Defendants might also be required to abstain from drugs and alcohol and comply with random drug testing. Another condition might be obtaining employment and abiding by a curfew. Defendants may also be prohibited from possessing weapons. 

Defendants who violate any conditions of the bail may face more strict conditions or have their bail revoked. If bail is revoked they will be detained until trial.

What is a Bail Bondsman?

In many cases defendants will enlist the help of a local bail bondsman to pay their bail. For a fee, usually 10% of the total bail amount, a bail bondsman will deposit bail with the court. If the defendant appears for all of their required court dates, the bail is returned to the bail bondsman, they keep the 10% fee, and the relationship between the bail bondsman and the defendant is over.

In the event the defendant does not appear when they are required, the bail bondsman can use one of their agents, commonly known as “bounty hunters,” to track down and arrest the defendant and deliver them to the court.

What Can a Bail Bondsman Do Legally?

State law governs how bail bondsmen can legally operate. In states where bail bondsmen are used, their agents are legally allowed, based on the law or the terms of the contract the defendant entered into with the bail bondsman, to arrest defendants and bring them back to the court or local jail. 

Some states, like North Carolina, do not allow bail bondsmen to use bounty hunters. They must apprehend fugitive defendants themselves. 

Bail bondsmen are typically allowed to enter the property that belongs to a person they are trying to apprehend. While it is illegal to harbor or hide a fugitive, a bail bondsman needs permission or a warrant to enter anyone else’s property.

If a bail bondsman harasses a person in an attempt to locate or apprehend a defendant, and that person has not contracted with the bail bondsman and agreed to take financial responsibility for the defendant, they should contact law enforcement. Bail bondsmen are not permitted to harass third parties in an attempt to locate a fugitive. 

Should I Consult with a Criminal Defense Lawyer?

If you have been charged with a crime you should always contact a  criminal defense lawyer to represent you. An experienced bail bonds attorney can negotiate on your behalf and help you secure an appropriate bail.  They can explain the process for using a bail bond or a bail bondsman and help you communicate and contract with a local bail bondsman.