If you are arrested for a crime, you will want to get out of jail while you await your trial date. Shortly after the arrest, a judge will hold a bail hearing to determine if and how you can get out.
One option is to let you out of jail on your own recognizance. This means that the judge trusts that you will return to court whenever you are instructed to do so, so no limitations are placed on you, and you may go free.
Another option is to put you on house arrest. In this case, you will wear a monitor on your leg that is wirelessly connected to a device that can tell if you are in your home. Typically, you will be allowed certain hours to be away, such as during work hours.
A third option available to the judge is to require you to post bail to get out of jail while you await further court proceedings.
There is no guarantee that you will be allowed to post bail – a judge can deny your request and mandate that you stay in jail while you await a trial date. Whether or not bail is allowed depends on several factors. One is, who is the judge? Some judges are more willing to set bail than others are. The most important factor is the severity of the crime that you are alleged to have committed.
For example, if you are charged with simple assault, you will probably be allowed to post bail. However, if you are charged with murder, there is a higher chance that a judge will deny your bail. In some states, bail is automatically denied if the crime is a violent felony.
When someone posts bail, they pay cash directly to the court. The money is refunded when the defendant has made their scheduled court appearances. If they do not appear, the money will not be refunded. The promise of the money being returned incentivizes the defendant to attend court for all of their hearings.
What Factors Do Courts Consider When Setting Bail?
A judge cannot freely set bail at just any amount. The judicial system strives to ensure that similarly situated defendants get the same bail set.
A judge will generally take the following factors into account when dealing with a bail request:
- Your past criminal record
- The severity of the crime, especially if it was violent
- Your employment status
- Your responsibilities to a spouse or children
- Whether you have strong ties to the community
- Whether the judge views you as a threat to society (this means the judge predicts that if allowed out on bail, you will commit another crime)
- Whether you currently have a warrant out for your arrest
- Whether you are considered a flight risk
- Whether you have a history of failing to appear at past court dates
- Whether you have an outstanding warrant or are on parole or probation
- Whether you were already out on bail at the time of arrest
- Whether you are an illegal immigrant or are having immigration issues
- Whether the offense has a maximum sentence of life imprisonment or death
- Whether the offense is one of certain drug offenses
If you have a history of jumping bail or committing other crimes while out on bail, it is safe to say that there is a low chance that you will receive bail. If you are wealthy and can afford to flee the country, you may also be viewed as a higher flight risk. A judge can require you to surrender your passport if you are a flight risk.
Are There Limits to How High Bail Can Be Set?
The Eighth Amendment of the United States Constitution prohibits bail from being “excessive.” Constitutionally, the amount of bail must be proportionate to the severity of the crime. This rule applies to both federal and state court systems.
This means that judges cannot use bail as a means of punishment or as a means of raising extra money for the courts. In addition, a judge cannot deny bail to give police officers more time to gather more evidence against you. Bail can only be used as a reasonable means to ensure that you will return to court for your hearings and trial.
If you get a high bail and cannot afford it, you can explore getting a bail bondsman to help pay your bail money (more on this below).
What Is Bail Jumping?
If you post bail and then skip town or fail to appear in court, that is bail jumping. Jumping bail is illegal and, in certain areas, considered a felony. Bail jumping is different from the original offense that prompted the court hearing. For example, if you are obliged to appear in court for felony carjacking charges, jumping bail will result in an additional penalty on top of the carjacking charges.
If you jump bail, the money you paid for bail will be forfeited to the court. The court will also likely issue a warrant for your arrest.
Because of the negative consequences you may face for jumping bail, you should ensure that you appear for all court dates after being released.
What Are Bail Bonds?
In many circumstances, criminal defendants cannot access the required bond amount. Instead, they can hire a bail bondsman and purchase a bail bond for 10% of the bail amount. That amount is the bondsman’s fee – it will not be returned. If the defendant fails to attend planned court hearings, the bail bondsman promises to pay the entire bail amount to the court.
For example, let’s say you have been charged with grand theft auto, which is a felony. The judge sets your bail at $10,000. You can pay that money yourself if that is possible, or you can hire a bail bondsman. The bondsman will charge you $1,000, which is 10% of the ordered bail amount. That money will not be returned to you – that is the bondsman’s profit.
If you fail to appear for trial, the court will establish a forfeiture date, and if you are not found by that day, the bail bondsman must pay the court the whole $10,000. Because it is in their financial interest to not jump bail, bail bondsmen hire agents who track down and ensure that defendants appear in court. Most bail bond companies have the authority to identify and arrest you after the court sets a forfeiture date.
Should I Consult an Attorney for Issues with Bail?
If you have been arrested and believe you are entitled to bail, were denied bail unfairly, or have been assigned bail that is too high, you should consult a local criminal defense attorney. Your attorney will know how to craft the most persuasive argument to convince the judge to lower your bail amount.
An important advantage to using a local attorney is that the attorney will be very familiar with the particular judge assigned to your case and will know which arguments the judge finds most persuasive.
As your case proceeds, you should also contact a local criminal defense attorney to help defend yourself. An attorney can appear in court, fight to get your charges dropped or reduced, try to negotiate a plea deal, and argue any defenses to your claim that may be appropriate.
