After being arrested and booked in jail, getting out of jail—as quickly as possible—is typically the person’s top priority. When that person sitting in jail is a friend or loved one, you probably want to know the same thing.
The criminal justice process can run unbearably slow at times. Fortunately, when it comes to bailing someone out after an arrest, a person might be able to post bail within a few hours or get in front of the judge within a couple of days. This article will discuss how that happens in the following sections:
- What Is Bail? How Does Bail Work?
- How Is the Bail Amount Set?
- Should I Post Bail Right Away or Wait for the Judge?
- What Are the Options for Paying Bail?
- What Are Common Conditions of Release on Bail? and
- How to Get Help From a Lawyer?
What Is Bail? How Does Bail Work?
In the United States, every suspect is presumed innocent until proven guilty. Once a prosecutor files the criminal charges, the case begins, but it can take months (if not years) before the case is resolved.
So what happens in the meantime? You have a defendant still presumed innocent and a government that wants to protect the public and make sure the defendant shows up for court hearings. Many times, the answer to these competing interests is bail.
Bail acts as a form of collateral. Basically, the defendant gives the court “bail”—money or an interest in real property—in exchange for release from jail. The court keeps the bail for the duration of the defendant’s case. If the defendant shows up to all the court dates and abides by the conditions of release, the court refunds the bail when the case is over. If, on the other hand, the defendant skips out on court dates, violates release conditions, or disappears altogether, bail can be revoked and forfeited (meaning the government gets to keep the collateral).
How Is the Bail Amount Set?
Bail amounts are supposed to be related to the goal of getting the defendant to come to court. Bail needs to be high enough to achieve this purpose but not so excessively high that a defendant has no chance of being able to pay it. In some states, every defendant has a right to have bail set. While in others, a judge can deny bail for certain crimes or under certain circumstances.
Bail Schedules: Paying the Jail Official Before a Hearing
Lots of jurisdictions use what are called “bail schedules.” A bail schedule is a list of bail amounts that correspond to different crimes. For example, a schedule bail for a property crime like grand (felony) theft might be $10,000. But for a more serious crime, like manslaughter, the schedule bail is likely to be in the ballpark of $250,000.
If you want to get out of jail quickly—without waiting to see a judge—you, a friend, or a family member will probably have to pay the schedule bail amount. This amount can typically be paid to the jail official. Assuming the defendant makes all their court appearances, the bail amount will be returned. But the government will hold onto the money while the case proceeds.
Bail Hearings: Waiting to Get in Front of a Judge
Jails officials don’t usually have the authority to deviate from the amounts listed in the bail schedule. Judges, on the other hand, are normally free to set bail at an amount they deem appropriate. A judge can even decide to let someone out of jail without requiring any bail—called release on one’s “own recognizance” or “O.R.”
To set bail at a different amount, a judge will typically hold a bail hearing in court. Judges often look to the bail schedule as a starting point for setting bail. Judges are also supposed to look to the circumstances of the case before making the final call. Judges ordinarily consider factors like:
- the seriousness of the arrest offense
- the defendant’s criminal record
- the likelihood that the defendant will flee before trial
- the defendant’s financial resources and responsibilities, and
- how much of a threat the defendant poses to others (the community or victim) if released.
Most of the factors aren’t related to the offense the defendant is charged with. So, it's not uncommon for two people charged with the same crime to pay different bail amounts.
When a defendant can convince the judge they don't pose a flight risk or a danger to public safety, the judge might cut the defendant loose without paying bail. But this type of release (O.R. release) still requires the defendant to promise to appear at future hearings and failure to do so comes with consequences.
Should I Post Bail Right Away or Wait for the Judge?
If you're not flush with cash, you might be trying to decide whether to:
- contact a friend for cash or a bail bond company to get out of jail fast, or
- wait to get in front of a judge to see if you can get bail reduced.
A defendant will need to weigh the costs of freedom against the costs of detention. Borrowing from family or friends means that person is out those funds until the court case is resolved. Paying a bond company comes at a nonrefundable cost—often a 10% fee—which can be expensive. Sitting in jail and waiting might also come at a cost—a day or more's pay and maybe your job.
By waiting to see a judge, your lawyer could argue for O.R. release (a promise to appear that costs $0) or for a lower bail amount (saving you or your family or friend money). Each defendant will need to evaluate the various options and their circumstances.
What Are the Options for Posting Bail?
Whether you decide to post bail right away or wait, once bail is set—either the schedule bail amount or the judge’s amount—the next step is "posting" bail. Acceptable methods for posting bail vary by jurisdiction. But a person can generally post bail by:
- paying the entire bail amount
- giving the court a security interest in real property, or
- contracting with a bail bond company to post bail for you.
The advantage of posting bail yourself—with cash or property—is that you can get a complete refund at the end of your case. Bail bond companies usually charge a 10% fee. So if your bail is $10,000, you’ll likely pay a $1,000 nonrefundable fee to the bondsperson. But for someone who doesn’t have lots of resources, a bail bond might be the only option—it’s either that or stay in jail.
Every jurisdiction is different, but to find out where to post bond, contact the court or the jail or detention center where the person is being held. The jail and court likely have information online or over a hotline on where and how bail can be paid. If the person has a bail hearing, they can get that information from the court or their attorney. Most places will accept various forms of payment (such as cash, wire transfers, or money orders) and some (but not all) may accept credit cards.
What Are Common Conditions of Release on Bail?
Anyone released pretrial on bail or their own recognizance promises to appear for all scheduled court appearances. A judge can revoke release and forfeit bail if a person fails to appear. Revoking bail means the defendant must await trial in jail. Some states also make failure to appear a separate crime.
Other common conditions of release include:
- no out-of-state or out-of-country travel
- no contact with alleged victims
- no weapons (and sometimes surrendering weapons to officials temporarily)
- electronic monitoring
- pretrial supervision and periodic check ins, and
- counseling, treatment, or monitoring of substance use or behavioral health issues.
Depending on the state’s laws, violating these conditions can also lead to the revocation of bail. For minor violations, a judge might amend the bail order and tack on more onerous conditions.
How Can a Lawyer Help?
Having legal representation at a bail hearing can help. A local criminal defense attorney will often be familiar with the judge and community and can work to put together a strong argument on your behalf for O.R. release or reduced bail. An attorney can also help you understand any conditions of bail that might be imposed and the consequences of not abiding by those terms.
(U.S. Const., 8th Amend.; U.S. v. Salerno, 481 U.S. 739 (1987).)