Everything You Need To Know About Bail
Bail has a long history. The English Magna Carta, signed in 1215, enshrined the right of British nobles to be free from excessive fines and to be punished proportionately to their offenses. This principle has been applied in the U.S. to bail since the founding.
The purpose of bail is to give criminal defendants an incentive to make all their court appearances. That is, when people are arrested, most are allowed to secure their release by posting bail. If they fail to appear in court to answer their charges, they forfeit the bail. Since most people cannot afford to forfeit the hundreds or thousands of dollars posted as bail, they will show up for all their court appearances.
The bail bond industry grew up around the bail process to assist people held in jail to be released. Many jails include a list of bail agencies next to the phone and bail agents are an important source of bail bond information. Moreover, many bail agencies have an office near the local jail so your loved ones can obtain bail bond information and help secure your release.
Additionally, while no one expects to be arrested, it can help to have some bail bond information before you need it. Here are ten things to understand about bail:
Bail is in the U.S. Constitution
The Eighth Amendment of the U.S. Constitution prohibits “excessive bail” for pre-trial detentions. This constitutional right applies when someone has been charged with a crime and arrested, but has not yet gone to trial. In other words, courts are required to grant bail, except in narrow circumstances, because you have not been found guilty or sentenced for a crime. Rather, under these circumstances, you have only been accused of a crime.
The U.S. Constitution does not provide any guidance about when bail is granted and the amount that would be excessive. However, courts have made a few important interpretations about the right to bail:
- A defendant can be held without bail if the court finds the defendant is a danger to the community or poses a flight risk if released.
- “Excessive bail” is interpreted to mean any amount that is punitive rather than merely calculated to secure the defendant’s return to court. This means that bail, in serious felony cases, can be high with being “excessive” under the Constitution.
- The bail clause of the Constitution applies to the federal government and is presumed to apply to all state governments.
The U.S. Constitution does not state how bail should be paid or collected. Instead, the exact bail procedure depends on the laws of the state, county, or city where the jail is located. For more bail bond information in your community, speak to local government officials or bail bonds services.
You Still Need a Lawyer
After being arrested, the defendant will usually want to have representation by a lawyer. The lawyer can be helpful in many ways:
- Bail advice: Lawyers are familiar with the local laws and court decisions that govern bail and can advise you on your rights.
- Advocacy: A lawyer can represent your interests and try to get ROR or reasonable bail for your release.
- Bail bond information: Criminal defense lawyers work regularly with local bail bond agencies and can help connect you with one that can help you get released.
Finding a good lawyer can be difficult. In 2019, America had about 1.35 million lawyers. However, during the initial appearance, defendants are usually provided a public defender if they have not obtained private representation.
Judges Set Bail
In a typical case, the accused is arrested and charges are filed while the accused is in custody. Sometimes, bail will be automatic and the defendant can place a call while still in jail to a company that prepares bail bonds to arrange bail.
Other times, the accused is held until the first court appearance. During that first court appearance, the accused is informed of the charges and a judge sets the conditions of the defendant’s release.
In some cases, particularly in misdemeanor cases where the charges carry only a short jail sentence or small fine, the judge may release the defendant without requiring bail. Release on recognizance (ROR) only requires that the defendant sign a declaration saying that the defendant will return for court.
In other cases, the judge may set bail in accordance with bail guidelines that set statutory ranges for bail amounts depending on the seriousness of the charges. Judges usually have some discretion to set bail within the guidelines and may deviate from the guidelines for particularly risky defendants.
Cash or Bond
When talking about bail, the phrases “cash or bond,” “bondable,” and “cash only” get thrown around. These phrases might be confusing for first-time defendants. However, they relate to how the bail is paid and whether you will need a bail bond company to assist you in paying the bail and providing bail bond information about how a bond works.
- Cash only: Usually reserved for defendants who are a flight risk, “cash only” means that the entire bail amount must be paid in cash. For example, if the bail is set at $10,000, the defendant must come up with $10,000 in cash to make bail.
- Bondable: Bondable bail means that rather than requiring the entire bail amount in cash, the jail can release you with a down payment and a bond (promise) to pay if you fail to make your court dates. For example, if the bail is set at $2,000, you might only need to come up with $200. With this $200 (and, possibly, collateral for the remaining $1,800), a bail bond agency can post a bond for the full $2,000 and secure your release.
- Cash or bond: This just means that you have a choice of posting the entire amount in cash or securing a bond from a bail bond agency.
The bail bond industry is very competitive. As a result, bail bondsmen and bondswomen work quickly to secure your release.
When defendants are booked into jail, they are typically given at least one phone call. Most jails have a list of bail agents and phone numbers next to the phone so you can arrange your release. However, if you call a relative, friend, or lawyer, their next call will typically be to a bail agent.
A bail bond company will usually be able to access the arrest record and determine if bail has been set. Based on the booking record, a bail bond agent can provide bail bond information to you, a friend, or a relative and make arrangements to post bail or prepare a bond. In a best-case scenario, you may be released the same day or the next day after being arrested.
You May Need a Co-signer
To complete the bail bonding, you may need a co-signer. Just like a bank loan or mortgage, a bond co-signer is financially responsible if you do not make your court appearances and you lack the assets to repay the bail agency.
Specifically, a co-signer has three primary roles in your bond agreement:
- Point of contact: If the bail agency cannot reach the defendant, the co-signer becomes the contact for tracking down the defendant.
- Financial guarantee: If the defendant misses court and the judge revokes the bail, the entire bail amount is forfeited even if it was bondable. For example, suppose your bail was $2,000 bondable and the bail agency posted a $200 bond to secure your release. If you fail to appear and the court revokes the bail, the bail agency forfeits $200 and has to come up with an additional $1,800 for the court. To get that $1,800 back, the bail agency can pursue you and the co-signer for reimbursement.
- Additional fees: The bail agency will charge you a fee for posting your bond. They will also charge you fees if they have to track you down. So, if you fail to appear in court and the bail agent has to spend time or money to find you, you and your co-signer will be responsible for those fees. When the bail bond company issues the bond, it will provide you and your co-signer bail bond information about the additional fees you may be assessed.
You May Need Collateral
Most bail agencies are realistic about the financial state of their customers. While many defendants might have good credit, many will have bad credit or no credit. Since a bond is essentially a loan, a bail agency may be reluctant to take on the risk of posting a bond for customers with bad credit unless they can post collateral.
The purpose of the collateral is to provide an asset that the bail agency can act against if the bail is forfeited. The collateral usually takes the form of an asset that has a readily discernible value and in which the bail agency can secure its interest. For example, the bail agency may file a lien against a home or vehicle, or hold jewelry, precious metals, or firearms in its safe until the bond is released.
In the event that your bail is revoked, the bail bondsman can execute on its lien or sell the collateral to try to recoup the forfeited bail. This means that you and your co-signer might lose whatever was posted for collateral if you do not make your court dates.
Different bail bond agencies accept different types of collateral. To find out what collateral your bail bond agency accepts and how it handles forfeitures, contact the office directly for bail bond information.
You Will Need to Check In
Because the bail bond agency has a significant financial interest in you, you will be expected to maintain regular contact with them. Many will be satisfied with regular phone calls once a week. However, if you have no residence, no phone, have a particularly high bail, or a history of absconding, the bail bond company may expect you to check-in at its office.
These check-ins are important for the bail agency to protect itself against you fleeing. If you miss a check-in, you will be in violation of your agreement with the bail bond agency and it may elect to cancel its bond agreement with you. If the bond agreement is terminated, the company will withdraw its bond and you will be back in your original position of either going to jail until your trial or finding a new bail bond company to post a bond.
Bounty Hunters Can Come After You
If you miss court, you set off a whole series of events that are all bad:
- The judge will note your failure to appear and issue a bench warrant for your arrest. While law enforcement will not necessarily come looking for you, you will be taken into custody if you cross paths with the police, such as getting pulled over for speeding.
- The court will revoke your bail.
- The bond posted by the bondsman will be forfeited and the bondsman will be given a deadline to pay the rest of your bail that was not covered by the bond.
- The bail bond agency will start hunting you so it can take you to jail before the deadline.
- The bondsman may also execute against the collateral and pursue your co-signer to recoup its money as explained in the bail bond information originally provided to the co-signer.
So, by missing a court date, you will simultaneously alienate your co-signer, lose your collateral, have law enforcement ready to take you in, and bounty hunters actively looking for you.
The Bail is Exonerated if You Appear in Court
On the other hand, if you make all of your required court appearances, your bail will be exonerated. Even if this means that you will have to pay a fine or serve time in jail, this relieves you, your co-signer, and your bail bond company of responsibility for your bail. This includes:
- Refunding your bond to the bail bond agency. Typically, the bail company keeps this as their fee for posting the bond.
- Releasing the collateral. This means that your home, car, or custom jewelry will be safe from being sold.
- Your co-signer is relieved of their financial responsibility for your bail and any additional fees that may be incurred by the bond agency for you.
- You will no longer be required to check in with the bail bond agency or keep the bondsman apprised of your movements while you are out on bail.
Allowing those accused of crimes to remain free in exchange for bail is a long-standing tradition in the U.S. legal system. This reinforces the American principle that people charged with crimes remain innocent until proven guilty.
However, the bail system is not without its critics. Money bail presents a barrier for defendants with low or no income, no collateral, and no support from friends or family. This leaves jails populated (or overpopulated) with poor people who have only been accused, but not convicted, of a crime.
Nevertheless, for those with resources, bail can be a lifeline. Courts are backlogged and trial dates are sometimes several months after the arrest. Without bail, a defendant could spend that entire time in jail. By posting bail or a bond, bail bond agencies can provide bail bond information and services to help those defendants go home and try to live their lives while awaiting trial.