Posting Bail what do I need to know?

Recently on our legal forum a user asked, “I was arrested last month for armed robbery. It seems like I spent too much time in jail and was not released out on bail fast enough. I don’t plan on getting arrested again, but I feel like I need to know more about the bail process. Can you tell me what I need to know and my rights for bail if I am arrested and placed in police custody a second time?”

Overview of Eighth Amendment

Under the Eighth Amendment of the United States Constitution, U.S. citizens are provided with protection against excessive bail. Specifically, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” against those charged with a crime.

What this means is that the federal government is barred from imposing unduly harsh criminal penalties against defendants, specifically for the price for obtaining pretrial release or as punishment for crime after conviction.

The government, however, does want to ensure that defendants return to court for court appearances and their trials. With this in mind, setting the right bail amount can be a deterrent for defendants to skip court dates, violate release conditions, or flee prosecution.

What do you need to know about bail?

1. Bail can be denied for certain crimes.

Now, although bail is generally granted to most defendants, it is not always guaranteed. In fact, bail can be denied for public safety exceptions (i.e. the defendant poses a danger to the public). For example, defendants who have been charged with crimes of violence, too many prior convictions, felony charges against minor victims, or certain drug offenses can be denied bail in federal cases.

Bail can also be denied in state courts, but state court rules for allowing bail vary. For example, some state courts may allow bail to be denied for certain capital offenses, for certain felonies such as sexual assault, if there’s strong evidence of the defendant’s guilt for certain crimes, or if the courts determine that the defendant is likely to substantially harm another person if they are released. Other states allow bail to be denied if the court determines the defendant poses a danger to a victim, another individual, or the community.

2. Bail can help you get out of jail.

Given the length of time it can take for your case to be reviewed in court, most defendants who are eligible for bail will want to post bail. This can be done by paying cash or check or by signing over the ownership of certain property.

If you cannot afford bail you can talk to a bail bondsman about purchasing a bail bond. The cost of the bond might be 10% of the bail (i.e. $1000 if your bail is $100,000), which is generally not refundable and not given back to you, even if you appear back in court.  In exchange, you will also have to provide some cash or collateral to the bail bondsman. If you return to court at the appropriate time for all of your court dates your collateral will be returned. If not, the

bondsman can liquidate the collateral for payment.

Note, although some defendants are forced to use a bail bondsman, it’s generally best to post bail on your own so you can receive a full refund of the bail at the end of your case. Any fees paid to a bail bondsman are generally not refundable, even if you are found not guilty of the crime.

3. Some defendants may be released on their own recognizance without bail.

Some defendants do not have to post bail to be released from jail, but instead, are released on their own recognizance. Although violent criminals are generally not released on their own recognizance, other defendants who can prove that they do not have a criminal history, were charged with a minor crime, have a good job, or have secure ties to the community and are unlikely to flee prosecution will have a strong chance of avoiding bail.

4. Bail is often based on bail schedules and can vary by jurisdiction.

While judges may have the authority to set bail at any amount they deem appropriate, deny bail, or allow a defendant to be released from jail on their own recognizance, if you want to get out of jail quickly and not have to wait to see a judge, you may be allowed to simply pay the scheduled bail amount. If you choose this option, however, the jail official will not deviate from the scheduled amount.

5. Judge’s may determine bail after considering several factors.

As mentioned above, if you wait for a bail hearing and allow a judge to determine your bail they might review the bail schedule and use it as a guide point, but they may also be allowed to consider other factors to determine bail. For example, they may review your criminal record, decide how likely you are to show up for your trial, review the seriousness of the crime committed, review your financial resources to avoid prosecution, and the likelihood that you might pose a risk to others if released and set bail based on these factors.