The bail concept sounds like an easy and straightforward process – perhaps, a layman’s perspective.
For many, bail means someone paying cash for the release of another in jail. Yes, this happens practically every time the cops make an arrest.
Although the narrative above gives a good view of what a bail entails, there’s a lot more to it.
Every day, many who are unfamiliar with the criminal justice system get confused when faced with a bail situation.
- What happens when one is unable to meet up with the bail request?
- Can another person secure an arrestee’s bail?
- Can a guarantor pay on your behalf? If, how does it work?
- How does the court define a bail amount?
- What are the acceptable payment methods?
This article gives a comprehensive look at these common concerns and related bail issues.
Whether or not you currently have an arrest-related concern, this information may come handy soon – perhaps for a family member, friend, or loved one.
Understanding Arrest and Bail-Related Terms.
The term Bail is used to refer to the release of an arrestee or a criminal defendant following an arrest – before the court completes the legal proceedings.
Bail may involve the defendant or a representative paying an ordered amount to the court. The bail money is demanded by the court to serve as a ‘collateral’ to make the defendant appear at all court sittings on the issue.
It is, therefore, noteworthy that bail is not, by any means, a form of punishment for suspects pending the court’s final judgment. Rather, it serves as a measure to bring criminal defendants back to court without necessarily confining them during the entire court trial duration.
Indeed, bail is a key element of the criminal justice system. Besides reducing the need for more space to hold suspects during the trial duration, the bail system also allows people to enjoy their constitutional rights until found guilty.
Note — release-on-bail can occur at any phase in the criminal justice process – whether immediately after police arrest or, even after a court sentence.
Typically, every arrest has three probable outcomes:
- The suspect is released
- Suspect charged and released on bail or;
- charged and incarcerated pending the final court judgment.
When the law enforcement agents or the cops make an arrest, they keep the suspect in custody. Arrestees are then moved to a criminal processing facility or a jail for a process commonly referred to as ‘Booking.’
In some cases, the law enforcement officers may release the suspects without any charges. However, if they file charges, the suspect may only be released on bail, on the court’s judgment, or until case settlement.
Booking usually trails an arrest. This administrative process requires the police to undertake a line of actions including collecting arrestees’ data, including fingerprints, photos, age, date of birth, collection of arrestees’ personal properties and keeping then in a storage facility, health evaluation, warrant search, and confining an arrestee in detention.
Post-Arrest Custody, Pretrial Release
- Following arrest and booking, one of three outcomes is bound to happen:
- Defendant released with a written note to show up in court
- The police release defendant following payment of bail cost
- The police retain the defendant pending a court bail hearing.
What applies among the three likelihoods vary across state laws.
Typically, persons arrested for lower-level offenses like petty larceny or disorderly conduct are often released with a court appearance written notice, while more severe offenders such as violence-related criminal are retained in custody pending the court’s bail hearing.
Bail Schedules refers to a list of bail charges applicable to individual crimes across jurisdictions.
State laws not only determine applicable bail amounts, and if defendants can be released without bail, it also dictates if the arrestee can post bail after booking or wait until the bail hearing.
The law also gives judges the right to increase or decrease bail as deemed appropriate. Note however that bail schedules are not applicable at federal courts and bail amount are fixed on judges’ discretion.
California State laws, for instance, stipulate bail hearing in cases including spousal battery, terrorism threats, spousal rape, and other specific crimes. Generally, if state law requires it, a defendant may obtain release-on-bail after booking, so far the applicable bail amount is settled.
Where the law stipulates a bail hearing, the arrestee may be unable to pay bail or secure a release until the court hearing holds.
During a bail hearing, the court specifies an amount payable as bail for a specific case. Many times, the court uses its discretion to deny bail, even when the state law allows it.
Whether the court gives a bail amount or chooses to deny a defendant bail often depend on certain factors, including:
Flight risk varies across defendants. For instance, defendants standing trial for cases that may lease to an extended jail term, life imprisonment, or even death sentence have higher chances of fleeing out of the jurisdiction compared to those with likely lesser charges.
Family ties and Obligations
Persons with greater family ties and responsibility may get more leniency from the court than those without. For instance, one with dependents may likely get a lesser bail amount.
One with strong community links, such as one who runs a local business in a community or whose family resides within the jurisdiction, logically, will less likely fail to show up in court or flee – compared to a visitor.
Persons with criminal records — particularly when it relates to a failure to show up in court — may have to pay a higher bail bond than those showing up for the first time.
In worse cases, these renowned bail-condition-violators are denied bail entirely.
Severity of Offence
Logically, the more severe the crime, the higher the bail amount.
While the court may squeeze $1000 or less bail amount from a shoplifter, a murder suspect may pay in hundreds of thousands or even more.
If an accused’s release poses a risk to public health and safety, the court, in its wisdom, may keep them in custody, pending the completion of the case.
For instance, a person accused of conspiring to engage in a terrorist act may be denied bail, as his freedom is perceived as a significant threat to public lives.
Besides setting an amount payable for bail, the courts establish additional requirements and limitations on the defendants when determining bail conditions.
Such conditions have close similarities with conditions for crimes punishable by probation.
When bail conditions are violated, the police may retain defendants in custody pending trial, and without returning any bail already paid.
Here are common bail conditions:
As with checking in with a probation or parole officer, persons on bail may be required to do routine check-ins with personnel called the Pretrial service officers.
These officers supervise defendants before trial to ensure compliance with court-imposed conditions and orders.
When accused of issuing criminal threats, domestic violence, stalking, or related crimes, the court issues the defendant a No-Contact Order.
This legal order refrains the defendant from any form of contact with the alleged crime victim.
Source of Income
The court may demand that a defendant sticks to a job during the bail term.
Typically, persons on bail are restricted to the jurisdiction except otherwise stated by the pretrial service officer or the court.
Defendants on bail may not be allowed to own firearms. This is regardless of whether or not the original crime had any link to firearm use.
Post-Conviction or Post-Sentence Bail
In certain circumstances, bail may be issued even after conviction — or sentence.
Typically, a prison or jail term sentence takes effect immediately after the judge’s pronouncement.
If, for instance, a judge orders a ten-years-imprisonment sentence, bailiffs would keep the defendant(s) in custody and transfer them to a detention facility to commence the prison time.
However, criminal defendants may get a released-on-bail option if a defendant seeks an appeal after the conviction or sentencing.
If, for instance, a judge orders a ten-years-imprisonment and the accused appeals the conviction, the judge may offer the defendant bail and allow him/her freedom pending hearing at an appellate court.
As with all bail-related issues, post-sentencing and post-conviction bail terms vary across states. And, noteworthily, some states do not allow post-sentence/conviction bail. In jurisdictions that do, the judge is allowed to, in most cases, use his discretion to grant bail and fix a suitable bail amount.
Procedures for Bail Payment
Besides differing rules across jurisdictions on determining bail amount and who should be released, procedures for bail payment differ too.
Normally, to pay for bail, one has to move to a particular location like a jail or courthouse. A clerk, cashier, or related officials at such locations would receive the bail payment.
The defendant’s name, the booking or case number, and the required amount to be paid are submitted to the officer. Expectedly, the officer has access to these info and can help you confirm the defendant’s bail amount. On confirmation of bail amount and other facts, the payer then makes payment.
On receipt of the said payment, the clerk signals the officials at the correctional utility where the defendant is kept in custody for his release.
In certain cases, the bail release takes an almost immediate effect. This is particularly when the clerk and the jail are located in the same facility. However, in other situations, the defendant’s release may take several hours.
Typically, bail payments are received in cash. However, some other accepted payments may include:
- Debit or credit card
- Traveler’s check
- Certified or cashier’s check
- Money order.
Again, accepted payment methods vary across states and jurisdictions.
Types of Bail
Too often, bail is directly linked to a certain cash payment. It is widely thought that if one gets arrested, they could easily get bailed out if they have the money to secure a bail release.
It isn’t entirely so— bail can be a lot more complicated — particularly for severe criminal cases.
That said, bail types differ across states and jurisdictions. Certain bails do not apply in some conditions and states; some are often or less employed than others.
However, here are the most common types of bail
In several cases, a simple citation may not automatically compel the police to release an arrestee. Often, the arrestee may only be released after booking and payment of a cash bond.
The law permits a proxy to help pay the said bail amount on behalf of the defendant.
The local or state bail schedule usually establishes the amount of cash bond. It is also often handled by a court after the bail is heard.
As long as the payer is able and willing to settle the full bail bond cost, the court orders the defendant’s release from custody.
Often, the court may order the release of a defendant in custody on their own recognizances(OR) – or personal recognizances (PR).
The PR and OR bonds take similar operations as citation and release. They only take effect after a court’s bail hearing.
Where a court allows such a bail, the accused will be granted release from custody with a provision that they appear in court at a set future date and adhere to other court-ordered bail conditions.
A signature or Unsecured Bond
Signature bond — also called unsecured bond — may apply following a bond hearing where the court fixes a bail amount that must be paid for release.
This kind of bond has similar features as the Own Recognizance and a release and citation.
Rather than securing release by payment of bail amount, the defendant is compelled to sign, agreeing to appear at all fixed court proceedings.
The court will require the defendant to surrender the imposed amount in the event he goes missing at any court hearing.
Property or Secured Bond
A property Bond — also referred to as a secured bond — is a kind of bail where a defendant offers the court a property interest worth the total value of the bail amount.
By this, the court then owns a security interest in the property, which gives it a legal right to take or possess the particular property received from the owner to a secured party.
For instance, if you acquire a car with a loan, we say your lender offered you cash for the car. For collateral, the lender gets a security interest in your new car.
If, by any means, you fault on the conditions of the loan repayment, the lender has the right to repossess the vehicle and sell to another person to make up for the loan collected. This well explains a security interest.
SO, a secured property bond transfers a security interest in a property to the court, which serves as the bail amount.
In any event the defendant fails to show up at a hearing, the court may obtain the said property for the unpaid bail.
Surety Bond or Bail Bond
This is a type of bail payment made by a bail bond agent on behalf of a defendant.
Bondsmen (Bail bond agents) are persons specialized in paying bonds for criminal defendants, at a fee.
The bond agents act as a surety, informing the court that they (the agents) will make full payment of the bond amount when the defendant misses any fixed court hearing.
Typically, bail bond agents are paid a percentage of the sum for those who need bail. The agent feels usually ranges between 10% to 15%.
So, if a defendant’s bail is fixed at $10,000, the bond agent is entitled to approximately $1000 and act as surety on behalf of the defendant.
Bail bonds, as with property bonds, require the defendant or the payer to offer some form of security as collateral against the bond — alongside signing the terms of the agreement.
For instance, the agent may request a piece of jewelry that he (the agent) could sell to get the bond amount in the event the defendant does not show up in court.
Also, the bond agent may ask that the defendant — or anyone in his stead — sign an interest in a home, car, or other properties that the agent can lay claim to should the defendant fail to come to court.
Retrieving Bail Money
As mentioned, bail is not a sentence or any form of punishment. So, if all bail conditions and terms and met in full, defendants are entailed to a refund.
Bail payment comes with two end possibilities: the bail is either refunded (where all terms are satisfied) or forfeited (if a condition or more is broken).
Bail Refund or Release
If a defendant is granted bail, the bail amount is refunded to the payer at the end of the criminal proceedings. The repayment or release of bail is dependent on the type of bail and the laws governing bail terms and conditions within the particular jurisdiction.
For instance, In Suffolk Country, New York, a person who pays a cash bail will have a refund between two to six weeks following the end of the case.
Conversely, where a property bond is used, the court reverts the lien in a relatively longer period.
In federal courts and other select jurisdictions, the end of a criminal case does not automatically mean a bail refund.
Under such laws, the payer is required to file a petition with the court, requesting a refund of the bail, or release of property lien.
Even after bail release, the court usually withholds a small percentage, which is often considered as an administrative fee. The court could deduct say 40$ for any money paid for bail.
In the event, a defendant gets bailed out but does not show up in court, or defaults on any bail terms and conditions, he forfeits the bail amount.
Where a person forfeits bail for failure to attend a court sitting, the court might decide to reinstate bail – and allow the defendant to stay out of custody pending when the case is settled.
An accused can ask the court not to forfeit bail — or reinstate bail — where the defendant offers good reasons for missing court. Such valid reasons could be a medical emergency or anything worthy of special consideration.
Retrieving Money from Bail Bond Agent
When an accused posts a bail through an agent, the accused pays the agent a fee, referred to as the bondsmen fee and may sign a security agreement or tender collateral.
Where the defendant agrees to the bond conditions, the bond agent returns the collateral or reverse the lien established by the agreement on completion of the criminal proceedings.
Regardless of the case outcome, the bond agent gets 10% to 15% as an agent fee.
Bond Hunters and Bond Forfeiture
If a defendant uses a bond agent’s service, and fails to show up in court or violates any bail term, the agent tries to get the defendant and keep then in police custody.
Typically, the courts grant a grace period to defendants after they violate the bail terms.
If an agent can get the defendant back to court before the grade period expiration, the agent may no longer have to pay the bail amount.
During this process, the bond agent may hire bounty hunters — otherwise referred to as bail enforcement agents — to apprehend the defendant. Like bond agents, bounty hunters are neither law enforcement officers nor government employees.
Although they have no general powers to make an arrest, they have the rights to arrest defendants who secured bail with a bond agent and failed on the terms.
As a part of the defendant’s contract with the bond agent, a defendant allows the bond agent — or partnering bounty hunters — enter their homes to make an arrest or take certain actions that may ordinarily be termed illegal without the consent of the defendant.
Noteworthily, state laws on both bounty hunters and bail agents may vary significantly.
Besides, some states do not recognize bounty hunters and bond agents.
Frequently Asked Questions on How Bail Works
If I pay, say $20,000 bond to the court, and the bondsman takes 10% who gets the rest?
While the bondsman gets 10% of the total amount, he hands $20,000 over to the court, pending when the case is settled.
When the court settles the case, your bondsman gets the money back from the court. The money is only withheld if you abscond without meeting the court’s conditions. Where this happens, your bondsman will come after you — perhaps with the cops.
If the defendant is found not guilty, will the defendant get back the %10 from the bondsman?
No. The 10% you give the bondsman is a non-refundable amount – regardless of the outcome.
Are there any ban restrictions after release on bond?
It’s all up to the judge. The judge will make the rules based on the nature of your charges, ties within and outside your community, your assets, and related factors. Your attorney’s expertise may help you get a more desirable directive from the judge.
How do I become a bondsman? I have tried several tests but I keep missing some questions.
Study more. Use mnemonic devices, flashcards, and/or try various memorizing techniques – whatever will help you memorize as much information as possible. For multiple-choice questions, try to start from striking out the clearly wrong options first.
If the court finds me not guilty of the crimes I was sued for, I can sue the law enforcement for the bail bond percentage I had to pay?
No. Law enforcement officers never forced you to hire a bondsman. It was possible you made direct cash bail and got a total refund at the end of the court processes.
Does a defendant need to pay a bond bail upfront?
From where does the bondman get paid?
As with a bank, they are paid off bail bond interest.
What if I do not wish to pay someone’s bail?
You are never under any compulsion to pay someone’s bail. So, you can decline a request to pay a person’s bail, outrightly.
As with all aspects of the American Criminal Justice System, the bail procedure involves more than most people assume.
In most cases, the financial implication of bail can be enormous – besides considering the eventuality of such criminal cases.
Typical of all criminal law-related concerns, onwing your options save a whole lot. For well-informed decisions, do well to discuss with your lawyer before you make any legal move.
A seasoned attorney will help you increase your chances of the desired outcome, particularly when you are a novice in the judicial circle.
Robert Gomez was born and raised in the Bronx, New York. He currently lives in Northern California with “the wifey,” “the kids,” “the dog,” and “that cat,” 🙁 He is also a former journalist who has interviewed murderers on death row. Felonyfriendlyjobs.org was born to help ex-felons get a second chance in life.