Bail

Learn how bail is set, how to get it lowered, when to use a bond, what happens if you jump.

Acceptable Forms of Bail

Bail is cash or its equivalent (such as a bail bond) that a court accepts in exchange for allowing a defendant to remain at liberty until the conclusion of the case. Bail creates a financial incentive for defendants to make all required court appearances. Should a defendant fail to appear in court, the bail is forfeited (that is, the court keeps the cash or collects on the bond) and the judge issues an arrest warrant. Bail jumping (not returning to court when required) is itself a crime. What Will Courts and Jails Accept as Bail?

Bail is usually posted in one of the following ways:

• by paying the full amount of the bail. For instance, if the police or a court set bail at $1,000, a defendant may post (pay) this amount in cash or with a credit card
• by purchasing a bond from a bail bond seller, who typically charges a nonrefundable premium of about 10% of the amount of bail. For example, if the police or a court set bail at $1,000, a defendant can usually purchase a bail bond for $100. The bail bond seller has to forfeit the full bail amount to the court if the defendant who purchased the bond fails to appear in court, or
• by depositing with the court property worth at least the full amount of the bail in some courts. For example, if the police or court set bail at $1,000, and a suspect owns a fancy watch worth at least that amount, the defendant may be able to use the watch to post bail.

Collateral for a Bail Bond

Often, bail bond sellers ask for collateral in addition to the cost of the bail bond. This means that the bond seller must be given a financial interest in enough real property (such as a house) or personal property (such as a car) to cover the bond seller’s loss if the arrested person jumps bail, leaving the bond seller liable for the full amount of bail. Collateral adds to the cost of a bail bond by tying up the collateralized property until the case concludes. This means, for example, a person is not free to sell property while it serves as collateral. Moreover, bond sellers often refuse to do business with an arrested person who lacks the ability to post collateral.

Court-Financed Bail

Some states offer a hybrid between posting full cash bail and buying a bail bond from a private bail bond seller. Under the hybrid system, a qualifying arrested person pays a fee of 10% of the full cash bail directly to the court; collateral may also be required. Unlike when a bail bond is purchased from a private seller, the 10% fee (less an administrative charge) is eventually returned if the arrested person makes all required court appearances. Of course, if a defendant fails to appear at a required hearing, the defendant is liable for the full cash bail amount, as well as being subject to rearrest and a new criminal charge of bail jumping.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

How Bail is Set

Judges ordinarily set a bail amount at a suspect’s first court appearance after an arrest, which may be either a bail hearing or an arraignment. Judges normally adhere to standard practices (for example, setting bail in the amount of $500 for nonviolent petty misdemeanors). However, judges can raise or lower the standard bail, or waive bail altogether and grant release on the defendant's "own recognizance," or O.R., based on the circumstances of an individual case.

Defendants do not need a lawyer to to arrange for bail. They can either post cash bail personally, or phone a bail bond seller and arrange for a bond. Relatives or friends can come to a jail or court and post cash bail for an arrested person or purchase a bond from a bail bond seller.

Factors That Influence Bail Amounts

In addition to the seriousness of the charged crime, the amount of bail usually depends on factors such as a defendant’s past criminal record, whether a defendant is employed, and whether a defendant has close ties to relatives and the community.

Judges may legally deny bail altogether in some circumstances. For example, if another jurisdiction has placed a warrant (hold) on a defendant, a judge is likely to keep the defendant in custody at least long enough for the other jurisdiction to pursue its charge. And bail may be denied to a defendant who is likely to flee the jurisdiction before the case concludes.

Example: Rosie Olla is arrested and charged with managing a large prostitution ring. Rosie is a naturalized American citizen born in Spain, and her family still lives in Barcelona. While searching Rosie after her arrest, the police found that she was carrying a passport and $5,000 in cash. Under these circumstances, a judge will probably be very reluctant to set bail for Rosie. Her family background and the fact that she was carrying a passport and a large amount of cash suggest that Rosie may flee to Spain if she is released on bail. Unless Rosie can explain to the judge why she was carrying the passport and cash, and can also demonstrate strong ties to the local community, a judge is likely to deny her request for bail.

Bail Schedules

In many areas of the country, defendants can post bail with the police even before they are brought to court for a bail hearing or an arraignment. Many jails have posted bail schedules, which specify bail amounts for common crimes. An arrested defendant can obtain release immediately after booking by paying the amount of bail set forth in the jailhouse bail schedule. Bail schedules can vary considerably according to locality, type of crime, and residency.

As a general rule, bail for offenses classified as felonies is five to ten times the bail required for misdemeanors. The more serious and dangerous the crime, the higher the amount of bail is likely to be. As a general rule, a jailhouse bail schedule is inflexible. The police will not accept bail other than as set forth in a schedule; suspects wanting to pay less must go before a judge.

As an alternative or in addition to jailhouse bail schedules, some areas have duty judges. A duty judge is available to fix bail over the phone, without the necessity for a formal court hearing. Like a jailhouse bail schedule, using a duty judge is an option for arrested persons who are anxious to bail out of jail before going to court.

Police Practices That Affect Bail Amounts

Unfortunately for many suspects who want to bail out of jail quickly, the police tend to arrest suspects for the most serious criminal charge that can possibly be supported by the facts at their disposal. For instance, the police may treat possession of a small amount of marijuana (a misdemeanor in most states) as an arrest for possession of marijuana with intent to sell (a felony in all states). Even though such a charge will almost certainly be reduced to a misdemeanor later in the case, it is a felony for the purposes of the bail schedule, and bail will be set accordingly.



This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

Limits to How Much Bail the Judge Can Require

The Eighth Amendment to the United States Constitution (which is binding on all states) requires that the amount of bail not be excessive. What this means is that bail should not be a way to raise money for the state or to punish a person for being suspected of committing a crime. Nor can the police use bail to keep a suspect in jail simply to give themselves more time to gather evidence. Because a suspect is innocent until proven guilty, the amount of bail should be no more than reasonably necessary to keep the suspect from fleeing the jurisdiction before the case is over.

The Reality of Bail Amounts

Despite the principles explained above, many judges set unaffordably high bail in some types of cases to keep suspected offenders in jail pending trial. Judges can lose elections when defendants they’ve released on bail commit new crimes, but rarely take political heat for keeping a suspect behind bars. High bail is particularly likely when a defendant poses a danger to the community or has committed an offense against a child. A judge may also set higher bail if a defendant is likely to flee the jurisdiction before trial or has a prior criminal record. Although some legal commentators argue that preventive detention—keeping a defendant in jail out of fear that the defendant is dangerous—violates the Eighth Amendment, the U.S. Supreme Court upheld the practice in U.S. v. Salerno (1987).

Foreign Nationals

Because of terrorism concerns, foreign nationals may face special obstacles in the bail-setting process. Arrested foreign nationals may need to contact a lawyer with experience in both criminal law and immigration issues, and may also want to contact their country’s consulate.

Example: Rex Kars is charged with felony hit-and-run driving. At a bail setting hearing, the judge sets bail at $5,000. Kars argues that the bail is excessive, as he cannot afford to post that amount in cash nor does he have sufficient collateral to purchase a bail bond. However, while a judge can consider Kars’s personal history and financial ability when setting bail, the fact that Kars cannot afford to pay the bail that is set does not make it excessive.

Example: Holly Woode is arrested for stealing two blouses from a clothing store (petty theft). During a bail hearing, the judge tells Holly, “In my opinion, once a petty thief always a petty thief. If I let you out on bail, you’ll probably just go on stealing.” With that, the judge denies bail to Holly. (Alternatively, the judge sets bail so high that Holly clearly has no way of paying it.) The judge’s decision is arbitrary and invalid. The crime that Holly is accused of committing is not one of violence, so preventive detention is unnecessary. Moreover, the judge’s comments are based only on the judge’s predisposition, not on information about Holly. Holly can file a petition for habeas corpus asking another judge to set reasonable bail.



This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

Convincing a Judge to Lower the Initial Bail

Defendants seeking lower or no bail should try to convince the judge of these facts:

T

he defendant doesn’t pose a physical danger to the community. Obviously, this argument is mostly available to defendants charged with nonviolent crimes.

The defendant has no previous criminal record, or has a minimal past record and made all required appearances associated with those charges.

The defendant has strong ties to the community, such as a family and a job (Judges are often impressed when family members and an employer personally appear to support a defendant at a bail hearing.)

Representing Yourself When Seeking Lower Bail or O.R.

You can represent yourself, but suspects typically benefit from legal representation at a bail hearing. Experienced attorneys know the factors that particular judges find important when considering a request for lowered bail or O.R. release. In addition, attorneys normally discuss cases with prosecutors before the bail hearing, and sometimes can assure the judge that the charges are not as serious as they look on paper. Finally, the simple truth is that judges often take attorneys’ arguments more seriously than those of self-represented defendants.

If the Judge Rules Against You

If you haven’t done so already, hire a lawyer. Judges can always reconsider bail, and may lower bail when they receive information—from an attorney—that they were previously unaware of.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

Failing to Show Up in Court After Bailing Out

Failing to make your court appearances, even before a trial has begun, is a huge mistake. Defendants who fail to appear at a scheduled court appearance may suffer both financial and criminal penalties. That is, a violator will forfeit the amount of bail and, in most states, may also be charged with a separate crime. Perhaps most seriously, if the person is ever arrested and detained again in the future—once the current case is resolved—the bail in that future case probably will be impossibly high, because the judge will consider the person a bail risk.

Example: Della is free on $1,000 bail after posting the full cash amount with the court. The judge orders Della to attend a pretrial settlement conference. However, Della fails to attend and does not explain her absence to her lawyer. As a result, Della will forfeit the entire $1,000 to the court. Della may also find herself charged with the crime of bail jumping, in addition to the crime she was charged with in the first place. A warrant will go out for her arrest, and when she’s picked up neither the police nor a judge or magistrate are likely to offer her a second chance to post bail.

What if defendants such as Della fail to make a required court appearance after purchasing a bail bond for $100? Because the bail bond seller probably required her to post collateral, the bond seller may sell her car or fancy watch or whatever property she pledged as security for the bond. In addition, if the collateral is insufficient, the bond seller can hire a bounty hunter to find Della, arrest her, and bring her back to the court’s jurisdiction so that the bond seller no longer has to pay the full amount of the bail to the court (or gets the money back, if it has already been paid). If she skips bail, Della will have two groups after her—the police and the bail bond seller/bounty hunter. As you can see, it would be better for Della to just make all her required court appearances once she bails out.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.