How Does Bail Work

Although may people who face criminal charges are released with a citation and the promise to later appear in court, more serious crimes are likely to result in arrest and pretrial detention. When a person is charged with a crime and is taken into custody, the person will normally be given the opportunity to post bail. Bail is the deposit of money or pledge of property that must be posted by the person to be released from jail in advance of trial. Bail can be forfeited if the person fails to appear in court as promised.

How Bail is Set

People who are arrested are entitled to an initial hearing to review whether there is probable cause for their detention, at which time a bond may be set. A bail hearing should occur within 48 hours of arrest, although the period may be up to 72 hours for detentions that span weekends or court holidays. Some states require an initial hearing within a shorter time frame, such as within 24 hours, but again subject to possible extension for periods in which the court is closed.

When reviewing bail, a court will review the allegations against the defendant and, following any argument presented by the prosecution and defense, set bail based upon factors that include:

  • The Seriousness of the Alleged Offense: The court will examine the allegations made against the defendant, with more serious allegations and charges normally resulting in higher bail;

  • Flight Risk: the court's assessment of whether the defendant is likely to appear for subsequent court hearings if released from custody;

  • Criminal History: the court's assessment of whether the defendant is going to stay out of trouble or pose a safety risk to the public if released on bond, and any prior history of failure to appear in court;

  • Community Ties: whether the defendant has ties to the community through family, employment, or assets (such as a home) and the extent to which those ties reduce the chance of flight; and

  • Conditions on Release: Whether it is appropriate to employ additional measures to increase the chance that the defendant will appear in court, such as the use of an electronic tether, random drug testing, a curfew, counseling, meetings with the court's pretrial release staff, or similar measures.

  • Bail Schedules: in many jurisdictions, courts have a schedule that defines an appropriate amount of bail for the offenses included in the schedule, allowing for bail to be set in a consistent manner from case to case;

The defense may argue for a lower bail amount, or even a personal recognizance bond, a promise to appear that does not involve the actual posting of cash or a surety bond. The defense also has the option of seeking a bond reduction at a later date, although a defendant should anticipate that the court will maintain its initial bond requirement.

Similarly, a prosecutor may argue for a higher bail amount, arguing that the risks of release justify a higher bond. Prosecutors are also aware that if a defendant cannot afford to post bond, the chances increase that the defendant will engage in plea negotiations and that the case will resolve with a guilty plea instead of a trial.

Although the U.S. Constitution includes a ban on excessive bail, the federal courts have not extended that ban to the states. As a result, in states that don't offer their own protections against excessive bonds, some defendants in state court may find themselves facing extremely high bond requirements even for relatively minor offenses.

Posting Bail Through a Court

If a defendant is able to do so, the defendant may post the amount of bail assessed by the court with the clerk of the court, and will be released based upon that payment.

In some jurisdictions, in order to minimize the need for defendants to rely on bail bonding services, the court may order a defendant to post a specified bail with a ten percent cash alternative, meaning that the defendant actually needs to post only ten percent of the bail to be released, but the defendant remains potentially liable for the full amount of the bail if the defendant fails to appear in court.

Using a Bail Bonding Service

A bail bonding company provides to the court a surety bond that promises payment of the defendant's full bail if the defendant fails to appear in court as required. The fee for a bail bond is normally ten percent of the full value of the bond. If the defendant makes all required court appearances the bonding company is released at the conclusion of the case, keeping its initial fee.

In addition to or in lieu of a cash fee, a bail bonding company may require collateral from the defendant. Collateral may take many forms, such as valuable personal assets such as jewelry or vehicles, or a lien against a home. Smaller items of collateral will normally be held by the bail bonding company pending the conclusion of the case. Often the collateral for a bail bond will be provided by family members, such that a defendant's failure to appear in court can result in significant financial hardship to those family members if the bonding company seeks possession of the collateral they pledged to secure the bond.

If the defendant appears as promised, subject to any fees the defendant agreed to pay for the bail bond, claims against collateral are normally released at the conclusion of the case. If the defendant fails to appear in court, the bonding service will have the authority to locate the defendant and, if necessary, to take the defendant into custody and return the defendant to the custody of the court.

The steps that a bail bonding company may take to bring a defendant to court may range anywhere from a gentle reminder, such as a phone call to a family member who helped pay for the bond reminding them of the consequences that are likely follow if the defendant does not voluntarily surrender, to employing a bounty hunter to search for and arrest the fugitive bailee.

Forfeiture of Bail

If a defendant who has been released on bail fails to appear in court as ordered, the judge will normally revoke bail and issue a bench warrant for the defendant's arrest. The bail amount is normally forfeited, meaning that the defendant will not be able to recover any portion of the money posted as bail when the case concludes. When the defendant is returned to custody, the court may be unwilling to allow for bail or may impose substantially higher bail as a condition to any further pretrial release.

A defendant who misses a court hearing should immediately contact defense counsel to explain the reasons why the hearing was missed. Sometimes a court will give a defendant a short period of time in which to appear before forfeiting their bail or issuing a bench warrant, which is the best way for a defendant to avoid financial loss and potentially spending the remainder of the pretrial period in jail. Also, it may be possible to convince the court to reinstate a bond for a defendant who makes a prompt effort to appear, an outcome that becomes far less likely as time progresses.

Return of Bail

The mechanism for the return of bail at the conclusion of a case varies by jurisdiction. In some courts, once the case is closed, the bail is returned automatically. In other courts it is necessary to bring a motion before the court asking for release of the bail. If a defendant is convicted, the posted bail is typically applied to the defendant's fines, court assessments, and possibly any restitution order, before any remaining balance is released to the defendant.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Apr 4, 2018.