By: Paula Lennon
Takeaway: Bail, a type of collateral that allows defendants to maintain their freedom before a court date, is set by a judge based on a variety of factors.
The chances of ending up in a U.S. jail are not as slim as many people believe. Contrary to popular belief, it is not only a place for hardened criminals who find themselves behind bars with only a hard bed and a toilet for company. Honest individuals can sometimes find themselves under arrest and being booked too. In some cases, they may have found themselves in the wrong place at the wrong time and be suspected of illegal activity; they may be innocent bystanders to a melee; or they may simply match the description of a wanted person. For some innocent persons, jail may simply involve a few hours of physical discomfort while the allegations are sorted out before they are released without charge. The less fortunate will remain under arrest and may even eventually be charged with a crime. Those detainees will be equally keen to leave their jail cells; however, sometimes their only option is to post bail.
What Is Bail?
Bail is a monetary sum that works as collateral. Detainees are often given the option to provide a predetermined amount of money in exchange for being released until their trial. If they show up for their trial, the money is returned. In order to determine if a prisoner is eligible for being released on bail, a court process weighs certain factors. The process also involves deciding what conditions of release, if any, should be placed on the defendant. If a detainee has been charged with a minor crime, is of previously good character, or is believed to be an upstanding citizen, he or she may be released on recognizance. This means that bail is waived on the condition that he or she appears in court on the relevant date. During the process, the judge can order that the detainee be released on non-financial conditions, such as monitoring, or set bail in the form of cash, pledged property, or a surety bond.
Can Anyone Get Bail?
Not all defendants are automatically entitled to bail. The nature of the crime in question plays a big part in determining whether a person remains incarcerated or not. For particularly heinous crimes, such as murder, the court is highly unlikely to offer a defendant the option to post bail. Additionally, if the detainee poses a threat to the safety of others or if there is a concern that the detainee may flee the jurisdiction, bail will most certainly be denied. On the other hand, it is possible for some detainees to be released immediately without being required to wait to see a judge. In many jurisdictions, there is a predetermined list of bail amounts for particular crimes. For other crimes, bail may be determined on a case-by-case basis. (What if you never committed a crime? Check out But I’m Innocent! What to Do If You’re Charged With a Crime You Didn’t Commit.)
How Does a Judge Decide Whether to Release Someone on Bail?
In most cases, detainees are required to attend a hearing before a judge within four to six hours of their arrest; however, this does vary from state to state, and the wait can be up to 48 hours. This hearing is a detainee’s opportunity to explain to the judge why he or she should set a very low bail or eliminate the requirement for bail altogether. If the defendant has retained an attorney (or had one appointed), he or she will make these representations on the defendant’s behalf. Judges are not allowed to make decisions based on public opinion or media commentary, but there are several factors that they are obliged to take into account:
- The nature of the offense and the weight of evidence against the defendant.Serious offenses have higher penalties, increasing the chances that the defendant will flee.
- The defendant’s criminal history and prior appearances in court. If defendants are past offenders or if they have a history of failing to appear for court, they are often assigned a high bail or no bail at all.
- Where you live. It is easier for a defendant to show up to a local court.
- Your employment status and your ties to the community. Unemployed people are considered less reliable, and if they have few ties to the community, they are viewed as more prone to fleeing.
- Your family life. Judges do not want a defendant to lose his or her job, particularly if it is essential to supporting a family.
How Much Is Bail, and How Does One Pay?
The Eighth Amendment to the United States Constitution requires that bail be reasonably set and not excessive, but it can range from a thousand dollars to millions of dollars. The American Bar Association’s Standards on Pretrial Release advocates that the least restrictive conditions for release be placed on defendants and that detention without pre-trial release should only be used where the community is in danger or the defendant may skip court. In other words, citizens should not be detained in jail merely because they are too poor to post bail. The unfortunate reality is that many may indeed be left to languish in jail simply because they cannot pay the bail, even though they pose no threat to the community and there is little risk that they will not appear in court. In these cases, it is best for them to telephone a bail bondsman, a close relative, or a trusted friend and ask for their assistance. If the defendant is a creditworthy person or can offer an asset as collateral, then he or she should have little difficulty getting someone to put up the cash. However, the benefactor will expect to be paid back. The bail bond fee is usually about 10 percent of the total bail amount, although the fee can vary depending on the circumstances.
Do Not Skip Bail
It is vital that defendants appear on their appointed court date. This shows the court that they are reliable and trustworthy. If they do appear in court on the given date, their bail amount will be refunded. If they do not show up, the court will keep the money and may issue a warrant for their arrest. In the event of jumping bail, most defendants are inevitably caught and end up right back where they were before, this time facing more severe punishments.