Most people hope to never need a bail bond. However, everyone makes mistakes and if those mistakes put someone in the wrong place at the wrong time, law enforcement may get involved and a person might end up in jail.
Once the criminal process begins, the accused person has a legal obligation to follow through on their court obligations. The most straightforward way a court has to ensure a criminal defendant appears in court is to hold that defendant in jail. However, this is impractical and unfair in most cases. Until a trial is conducted, the defendant is accused, but not convicted, of a crime. Thus, holding every criminal defendant in jail until trial risks jailing innocent people.
Bail was invented to deal with this unfairness. Rather than holding all criminal defendants in jail, a court can hold the defendant’s property until the case is over. If the defendant makes all the required court appearances, the property is returned even if the defendant is found guilty of the crime. In other words, bail is not punishment. Rather, bail merely acts as a guarantee that the defendant will satisfy all court obligations.
This basic bail bond information, however, just scratches the surface of the bail bond industry and how bail bonds work. Here are some frequently asked questions about bail bonds along with some answers to provide a complete overview of bail bond information:
Is Bail a Constitutional Right?
No. In the U.S., the Constitution prohibits excessive bail. However, there is no explicit guarantee of bail in the U.S. Constitution. Nevertheless, courts have interpreted the prohibition on excessive bail to create a preference for bail.
In other words, holding a criminal defendant without bail would be “excessive” unless the circumstances warrant remand without bail. Thus, bail is usually permitted unless a judge finds that a criminal defendant is a danger to others or poses a flight risk. If neither of those circumstances exist, a judge should grant bail under the U.S. Constitution.
To determine whether those circumstances exist, the judge conducts a bail hearing soon after the defendant is arrested. In a typical case, the bail hearing occurs within a day or two after the arrest.
At the bail hearing, the defendant’s criminal defense attorney presents the defendant’s case for release. A judge usually ends a bail hearing in one of three ways:
- Release on recognizance (ROR): The defendant is released without requiring bail. Essentially, the judge trusts the defendant to return for all hearings and trial.
- Grant bail: The defendant will be released if bail is posted. Bail takes the form of cash bail or bail bond, as explained in greater detail below. If the court allows a bond, bail bond information will be needed from a bail bond agency to post the bond.
- Remand: The defendant is held without bail. As mentioned previously, the judge must make specific findings, such as the danger posed by the defendant if released, to remand without bail.
How is the Bail Amount Determined?
The amount of bail is usually set using a combination of statutory guidelines and the judge’s discretion. In a typical case, the statute sets a bail range based on the seriousness of the offense and the judge sets bail within the prescribed range using the judge’s discretion.
For example, a state may set the bail for a third degree felony between $5,000 and $10,000. During the bail hearing, the judge may asks questions to try to discern the likelihood that the defendant will return for trial. If the judge believes the defendant will return for trial, the judge may set the bail toward the low end. If the judge believes the defendant might miss trial, the judge may set the bail toward the high end.
In some states, bail is reserved for the most serious crimes and the judge must ROR defendants for less serious crimes. For example, bail reform efforts in New York have created a system where defendants accused of misdemeanors and non-violent felonies are released without bail. This means that felony bail bonds are only required when a defendant is accused of a violent felony.
What is Cash Bail?
Cash bail is bail that is only accepted in the form of cash or, depending on the jurisdiction, credit card. Essentially, cash bail is a deposit of cash that is held by the court until a defendant’s case is completed. If the defendant makes all the required court appearances, the cash is returned. If the defendant fails to appear in court, the cash is forfeited.
Cash bail might arise in a few circumstances:
- Minor offenses: If the offense is minor, the bail might be relatively low. For example, the bail for a misdemeanor might be set at $500. Rather than having a relative or friend find local bail bondsman to provide bail bond information and post a bond, the defendant might just pay $500 in cash to secure the defendant’s release.
- Flight risk: In some states, the court is allowed to require cash bail if the judge believes the defendant is a flight risk. In other words, bail bonds are not accepted in these cases because the judge does not believe a bond will provide enough motivation for the defendant to appear in court. Rather, the judge might require cash bail to secure the defendant’s release.
With this in mind, bail reforms have focused on cash bail as a problem because it means homeless and poor defendants might be kept in jail for no other reason than being poor. As a result, many states have restricted judges from requiring cash bail. However, some states allow a judge to set cash bail at a lower amount than a bail bond. For example, a court could order the defendant’s release on $1,000 cash bail or $2,500 bail bond.
What is a Bail Bond?
An alternative to cash bail is a bail bond. A bond is a promise. Thus, a bail bond is a promise to pay the bail amount if the defendant skips bail. In contrast to cash bail, a bail bond usually requires a certification from bail bond companies. In some jurisdictions, the court might require a small deposit along with the certification but would not require the entire amount if bail is satisfied with a bond.
To issue bail bonds, a bail bond company must usually be licensed with the state and must have a surety to financially guarantee the bond. A surety is like an insurance company that pays the bail if the defendant fails to appear in court.
To reduce the risk of paying bail, the surety may impose certain restrictions and requirements on the bail bond company about the practices it uses to issue bail bonds and the bail bond information it must collect from the defendant.
What Does a Bail Bond Company Need to Post a Bail Bond
If a judge orders a defendant released with bail, but the defendant cannot or does not want to pay cash, a bail bond is a reasonable alternative. While in jail, the defendant may have trouble getting any bail bond information. As a result, the defendant will usually rely on a friend or family member to gather bail bond information for the defendant’s release and find a bail bondsman to post the bail.
For bail bond services to issue a bond they need:
- Fee: The fee for a bail bond is usually a percentage of the bail. For example, if the bail is set at $5,000, the bond fee will likely be 10% of the bail or $500.
- Collateral: To reimburse the surety in the event that the defendant skips bail, the bail bond company may require collateral to cover the bail. In the example above, a bail bond company might require collateral worth $5,000 in addition to the $500 fee. The collateral can be any property, such as jewelry, vehicle title, house deed, firearms, or other tangible property.
- Co-signer: The co-signer acts as a guarantor to pay the bondsman if the defendant skips bail and also a point of contact if the bondsman cannot locate the defendant.
After satisfying itself that the financial risks of posting the bail bond are covered, the bail bond company can write the bond and post it with the court. When the court receives the bail bond information, it notifies the jail to release the defendant.
What Restrictions Must a Defendant Observe While Out on Bail?
Restrictions on the defendant while released on bail can come from two sources:
- Court: The court may impose conditions on the defendant’s release. After bail is posted, the defendant may have to check in with a pre-trial supervisor, wear an ankle monitor, remain within the state, stay away from co-defendants and victims, and avoid getting arrested again. If the judge imposes conditions on the defendant’s release and the conditions are violated, the defendant’s bail may be revoked and the defendant may be returned to jail.
- Bail bond company: The bail agreement signed by the defendant with the bail bond company will also include conditions. For example, a defendant might be required to check in periodically with bail bond agents and notify the bail bond company of any address change. Violation of a term of the bail agreement might result in the bail bond company withdrawing its bond, which will result in the court ordering the defendant back to jail. The bail bond company will provide all the bail bond information needed to avoid violating the bail agreement when the defendant is bailed out.
Aside from the bail bond company having the authority to withdraw its bond, a defendant’s co-signer can withdraw their guarantee. This might happen if the co-signer is afraid that the defendant might skip bail and leave the co-signer on the hook for the bail.
If the co-signer contacts the bail bond company and withdraws the guarantee, the bail bond company will likely contact the defendant to find another co-signer or post collateral. If the defendant cannot provide any assurances to protect the bail bond company, the bond will be withdrawn and the defendant will be ordered back to jail.
When is the Bail Released?
If a defendant makes all the required court appearances, the judge can exonerate the bail. In some jurisdictions, this requires a motion from the defendant’s criminal law attorney. In other jurisdictions, this occurs automatically.
When cash bail is released, the cash is returned to the defendant or whoever paid it. When a bail bond is released, the bail bond company is released from the promise it made to the court. As a result, the bail bond company will return or release its lien on the collateral. However, the bail bond company will keep the fee for providing bail bond information, arranging the bond, and monitoring the defendant.
What Happens if the Defendant is Found Guilty?
Bail is exonerated at the final court appearance regardless of whether the defendant is acquitted, found guilty, or pleads guilty. In other words, bail is not punitive and must be released once it has secured the defendant’s appearances in court.
In a typical case, the criminal defense lawyer for the defendant will make an oral or written request to the court after the sentencing to exonerate the bail. The judge will order the bail exonerated and the court clerk will process the release of cash or bond. In some jurisdictions, any fines assessed during sentencing may be deducted from cash bail before its release. However, in most jurisdictions, cash bail is released in full, minus a processing fee if paid using a credit card.
Is Bail Used in Civil Cases?
No. Bail is only used in criminal cases. However, the same events can lead to a criminal case and a civil lawsuit. For example, if a driver is involved in a car accident due to slick roads, the driver and the driver’s insurance company might be liable in a civil lawsuit for auto collision repair for the other cars involved, but no criminal charges would be filed.
If, however, a driver is involved in a car accident due to drugs or alcohol, the driver could be sued in a civil lawsuit for car accident injuries and vehicle damage and arrested for driving under the influence.
When an event spawns both a civil lawsuit and a criminal case, the defendant will likely hire two separate lawyers. With at least 1.35 million lawyers working in the U.S., finding a criminal lawyer and a personal injury defense lawyer should be relatively easy, although it may be expensive.
As discussed above, the driver may be held in jail after the accident until the driver is arraigned in court. At the arraignment, the driver would be informed of the charges. A bail hearing may take place at the same time as the arraignment. If the judge grants bail and the driver posts cash bail or a bail bond, the driver would be released from jail.
Getting arrested is life-changing. However, the defendant can mitigate some of the effects, like job loss, eviction, and repossession of property, by getting released from jail as soon as possible so the defendant can keep working. To do this, the defendant can work with a bail bond company to learn as much bail bond information as possible and arrange for a bail bond to secure the defendant’s release until trial.