you need to know about bail -- what it is, how it's set,
and how to pay it.
A person's first thought upon landing in jail is often
how to get out -- and fast. The usual way to do this to
"post bail." Bail is cash or a cash equivalent
that an arrested person gives to a court to ensure that
he will appear in court when ordered to do so. If the
defendant appears in court at the proper time, the court
refunds the bail. But if the defendant doesn't show up,
the court keeps the bail and issues a warrant for the
Bail Is Set
Judges are responsible for setting bail. Because many
people want to get out of jail immediately (instead of
waiting up to five days to see a judge), most jails have
standard bail schedules that specify bail amounts for
common crimes. An arrested person can get out of jail
quickly by paying the amount set forth in the bail schedule.
Eighth Amendment to the U. S. Constitution requires that
bail not be excessive. This means that bail should not
be used to raise money for the government or to punish
a person for being suspected of committing a crime. Remember:
The purpose of bail is to give an arrested person her
freedom until she is convicted of a crime, and the amount
of bail must be no more than is reasonably necessary to
keep her from fleeing before a case is over.
much for theory. In fact, many judges set an impossibly
high bail in particular types of cases (such as those
involving drug sales or rape) to keep a suspect in jail
until the trial is over. Although bail set for this purpose
-- called preventative detention -- is thought by many
to violate the Constitution, courts have uniformly rejected
this argument (the issue has never been decided by the
U.S. Supreme Court, the ultimate arbiter of what is and
is not constitutional).
a person can't afford the amount of bail on the bail schedule,
he or she can ask a judge to lower it. Depending on the
state, this request must be made either in a special bail
setting hearing or when the person appears in court for
the first time (usually called the arraignment).
Bail can take any of the following forms:
or check for the full amount of the bail
property worth the full amount of the bail
a bond (that is, a guaranteed payment of the full bail
a waiver of payment on the condition that the defendant
appear in court at the required time (commonly called
"release on one's own recognizance").
A bail bond is like a check held in reserve: It represents
the person's promise that he or she will appear in court
when required to. The bail bond is purchased by payment
of a nonrefundable premium (usually about 10% of the face
amount of the bond).
bail bond may sound like a good deal, but buying a bond
may cost more in the long run. If the full amount of the
bail is paid, it will be refunded (less a small administrative
fee) when the case is over and all required appearances
have been made. On the other hand, the 10% premium is
nonrefundable. In addition, the bond seller may require
"collateral." This means that the person who
pays for the bail bond must also give the bond seller
a financial interest in some of the person's valuable
property. The bond seller can cash in on this interest
if the suspect fails to appear in court.
Out of Jail Free
Sometimes people are released "on their own recognizance,"
or "O.R." A defendant released O.R. must simply
sign a promise to show up in court. He doesn't have to
defendant commonly requests release on his own recognizance
at his first court appearance. If the judge denies the
request, he then asks for low bail.
general, defendants who are released O.R. have strong
ties to a community, making them unlikely to flee. Factors
that may convince a judge to grant an O.R. release include
defendant has family members (most likely parents, a spouse
or children) living in the community.
The defendant has resided in the community for many years.
The defendant has a job.
The defendant has little or no past criminal record, or
any previous criminal problems were minor and occurred
many years earlier.
The defendant has been charged with previous crimes and
has always appeared as required.