If you watch television, you’ve probably seen variations of this scene dozens of times: a judge bangs a gavel and announces, “Bail is set at $100,000.” The defendant looks despondent as he consults with his lawyers. But somehow he ends up free while waiting for his trial to begin. One hundred thousand dollars is a lot of money to come up with — how did he afford it? And what did it mean when the defense attorney claimed his client was not a “flight risk”?
Bail works by releasing a defendant in exchange for money that the court holds until all proceedings and trials surrounding the accused person are complete. The court hopes that the defendant will show up for his or her court dates in order to recover the bail.
In many cases, trials can begin weeks or months after an initial arrest, and if not for bail, many people, some of whom might be innocent, would have to wait in jail until their trials began. At the minimum, this can present a financial hardship, as the person would be unable to work. And, the person would also be missing his or her life — family events, holidays, etc. Not everyone who is released on bail is eventually acquitted, so to prevent particular dangerous suspects from being released, several safeguards have been built into bail law. In this article, we’ll learn about those safeguards, how the bail process works and how this system has changed since it was first started in England centuries ago.
Source: Black’s Law Dictionary
- bail-jumping – the criminal offense of defaulting on one’s bail
- bailee – a person who receives personal property from another as a bailment
- bailer/bail agent/bail bondsman – one who provides bail as a surety for a criminal defendant’s release
- bail bond – a bond given to a court by a criminal defendant’s surety to guarantee that the defendant will duly appear in court in the future and, if the defendant is jailed, to obtain the defendant’s release from confinement
- bail commissioner – a judge empowered to hold an emergency hearing to set bail when a hearing cannot be held during regular court hours
- excessive bail – bail that is unreasonably high considering both the offense with which the accused is charged and the risk that the accused will not appear for trial
- personal recognizance – the release of a defendant in a criminal case in which the court takes the defendant’s word that he or she will appear for a scheduled matter or when told to appear
- surety – a person who is primarily liable for the payment of another’s debt or the performance of another’s obligation
The Bail Process
When someone is arrested, he or she is first taken to a police station to be booked. When a suspect is booked, or processed, a police officer records information about the suspect (name, address, birthday, appearance) and the alleged crime. The police officer conducts a criminal background check, takes the suspect’s fingerprints and mugshot and seizes and inventories any personal property, which will be returned when the suspect is released. The suspect is also checked to see if he or she is intoxicated and usually is allowed to make a phone call. Finally, an officer puts the suspect in a jail cell, usually with other recently booked suspects.
For less serious crimes, a suspect may be allowed to post bail immediately after being booked. Otherwise, the suspect will have to wait (usually less than 48 hours) for a bail hearing where a judge will determine if the accused is eligible for bail and at what cost.
The amount of bail depends on the severity of the crime but is also at the judge’s discretion. Some jurisdictions have bail schedules which recommend a standard bail amount. For example, in Los Angeles, the bail schedule recommends $25,000 for perjury or sexual assault, $100,000 for manslaughter and $1,000,000 for kidnapping with intent to rape.
In determining bail, a judge may take into account this amount but will also consider the defendant’s criminal record (if any), his or her history of showing up for past court appearances, ties to the community, whether the suspect is a danger to others and any other concerns that may be raised by the defendant’s attorney. In some cases, bail may be waived altogether, which we’ll discuss later in the article.
So how did that guy on Law & Order afford $100,000 bail? Read on to learn about the different types of bail.
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- “The History of Bail.” 7/4/2006. The Jax Surety Association. http://www.jaxsurety.org/HistoryBail.asp
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- Drimmer, Jonathan. “Bounty Hunter Laws.” 3/14/2003. http://www.americanbailcoalition.com/new_html/Bounty%20Hunter%20Laws.htm
- Johnson, Lyndon B. “Remarks at the Signing of the Bail Reform Act of 1966.” http://www.presidency.ucsb.edu/ws/index.php?pid=27666
- Steinberg, H. Michael. “Information About Bail.” http://www.hmichaelsteinberg.com/bail.htm
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