It can be frustrating when we’re watching a high-profile court case unfold and the judge releases someone on bail. Immediately, most people assume that our justice system is skewed to favor the rich: after all, a $100,000 bail is nearly impossible for the common man to pay, but pretty much a drop in the well for a 1%. If you pay bail, does that mean you’re innocent? What if you don’t have the money? And where does bail money go after it’s paid? Where’s the justice there?!
Fortunately, however, bail doesn’t actually work that way, in fact, just because you’ve posted bail doesn’t mean your court case is dismissed; heck, it doesn’t even prove anything at all.
What is Bail?
A lot of people have a lot of misconceptions about bail, but in reality, bail is just money a defendant pays so that they’re not sitting in jail while waiting for trial. In essence, bail is basically court insurance, or an incentive to ensure that you won’t be skipping your trial and other court dates in the future.
This is because, unlike in TV and movies, real-life court cases actually take place weeks, sometimes even months, after a person is arrested. Most court cases also don’t take place in one day; often, a trial takes place throughout several days, weeks, even months, and sometimes (rarely, but it has happened) a trial can last for years. Considering how long a trial lasts, posting bail, no matter how big it is, is a more acceptable alternative than sitting in jail until your trial is over.
What is the Bail Process?
The bail process is a series of steps the court takes to determine the exact amount you have to pay. The courts need to make sure that your bail is commensurate to the crime you may have committed, and that process starts during the arrest.
When a person is arrested, the officer in charge takes the suspect to the police station to be booked. During the booking process, every single detail of the context of your arrest is recorded, from the alleged crime and whether or not you were intoxicated to your personal details and appearance. They’ll also conduct a criminal background check on the arrested person, take their fingerprints and mugshot, and then put in a jail cell. You’re allowed to make a phone call during this time, usually to either inform your family of your arrest or to call a lawyer.
If the crime wasn’t serious (e.g. misdemeanors like drunk and disorderly, vandalism, etc.), bail can be posted immediately. Often, a bail schedule at the station will tell you and the police how much bail you’re supposed to post. If you’re unable to post bail for less serious crimes, or if your crime is serious enough, you’ll have to wait 24 hours (but less than 48 hours) for a bail hearing. During your bail hearing, a judge will review the case and determine if your crime is bailable, and if so, how much bail needs to be paid. You can bail yourself out of jail, if you have the resources to do so, otherwise, you can use bail bondsmen or wait for a bail hearing.
For less serious crimes, a suspect may be allowed to post bail immediately after being booked. Otherwise, the suspect will have to wait (usually less than 48 hours) for a bail hearing where a judge will determine if the accused is eligible for bail and at what cost. The amount of bail is determined by both the severity of the crime and the discretion of the judge. Again, a bail schedule is available for reference of the courts, but a judge can set a lower or higher (within the law, of course) amounts depending on whether they feel you deserve it or not.
This decision is usually based on the judge’s review of your past history: do you have an existing criminal record? If yes, what is your history of appearing in court? What is your standing in the community? Do you pose a danger to yourself and others? During this review process, your attorney can argue for you to either lower the bail amount or get you off without bail.
Where Does Bail Money Go?
Contrary to popular belief, bail money does not go to the lawyers (this is not how lawyers get paid, for everyone’s information). Once you’ve posted bail, your bail money stays with the court until you’ve completed all your trial dates. If you fail to appear in any of your court dates, the judge may forfeit your bail and keep the money, where it is then dispersed to the county, the city, and the state, depending on your state’s penal code.
Again, bail money is the court’s way of ensuring that you show up to your court dates. It is not a way for them to raise money for their office. Once you complete all your court dates, your bail money is returned to you in full.
Are There Different Types of Bail?
The amount of bail that is levelled on a defendant depends on the context of their crime, their arrest, their personal history, their criminal record, and the judge’s discretion after taking into account all of those things above. Usually, there are 5 different types of bail that can be set, with some more common than others.
Release on Own Personal Recognizance
Because bail is primarily determined by both a bail schedule and the judge’s discretion, a defendant can appeal to be released on Personal Recognizance (called Release on Own Recognizance, or O.R. in some states). This is common for people who have committed very minor and non-violent crimes, and after the judge has determined that the defendant is:
- Not a flight risk (making them less likely to flee)
- Has no or little criminal history
- Has no history of violence
- Determined to not be a risk to the community
Release on Citation (Cite Out)
For less serious offenses, a defendant might not even go through the whole bail process at all; if a person commits a minor misdemeanor, the arresting officer can choose not to book the person at all. Rather, they issue what is called a Release on Citation, otherwise known as Citation In Lieu of Arrest.
This is basically an officer issuing a note to the offender saying that they just need to show up in court and pay the bail there. It’s less thorough than a formal booking, but it’s quicker for everyone involved, and frees up the time of both the police and the courts to focus on more serious crimes.
Cash bails are the most common types of bail available. A cash bail means that the person accused must pay the full amount of bail in cash, although some courts do accept payments in the form of checks, with some courts even accepting credit card payments.
Not everyone can afford bail, especially if it’s for a serious enough crime that merits you an amount in the thousands of dollars. Fortunately, our court system allows the accused to pay for their bail using what is called a Surety Bond. In essence, a surety bond is a type of promissory note issued to the defendant and is paid through a bail agent, also known as bail bondsmen.
A Surety Bond (or, a bail bond in some states) is requested by a friend or family member of the accused through a bail bondsman. The bail bondsmen then agrees to pay for the bail amount (usually with a 10% premium plus other types of collateral like personal belongings, or even titles to property) in the mean time. Bail bondsmen are backed by a special kind of insurance company called Surety companies, which is how they can afford to pay for their clients bail.
Surety bonds involve a lot more parties and collateral, which can be helpful to ensure that the defendant appears in court. This system highly encourages the defendant to show up in court because it’s not just their own money that’s on the line: their family or friend that signed the surety bond are at risk of losing their collateral, while the bail bondsman will end up paying for the entire bail amount should the court forfeit due to the defendant’s absence in court.
One of the rarer types of bail, a property bond is a type of bond wherein a defendant uses their real property to pay for bail. In this case, the court issues a lien (that is, a type of legal claim over someones property) on a piece of property that the defendant owns, so long as it’s determined to be the same amount as the bail (in some states, the property has to be twice the amount of the bail).
If the defendant completes all of their court dates, the lien is released. However, if the defendant fails to show up during their designated court dates, then the court can and will foreclose on the defendant’s property.
What are Bail Bond Agents?
Because bail amounts can be ridiculously expensive, people usually seek the help of bail bondsmen to get their family or friend out of jail. Like what was mentioned above, bail bondsmen are people who pay the full bail amount of a defendant, in exchange for a premium, and secured by a collateral of some kind.
Because bail bondsmen work with a lot of criminals, they can often be aggressive about getting their clients to court, as a forfeit of bail means that the bondsman must pay the bail amount in full (which is usually more than the premium they collect, or the collateral they’ve secured). Basically, bail bondsmen act as loan agents that cater specifically to helping out individuals on their bail amounts.
Most states have state-approved bail bonds agents, although commercial bail bonding companies exist. If you’re seeking the help of a bail bondsman or bail bonding company, always ask to see their business particulars, especially their operating license and their bail bondsman license. However, take note that certain states do not allow commercial bail bonding (i.e. Illinois, Kentucky, Oregon, and Wisconsin), so those states might not accept surety bonds from bail bonding companies in that jurisdiction.