INFO & FAQS
When someone is arrested, he or she is first taken to a police station to be booked. When a suspect is booked, or processed, a police officer records information about the suspect (name, address, birthday, appearance) and the alleged crime. The police officer conducts a criminal background check,takes the suspect’s fingerprints and mugshots. Then the officer seizes and inventories any personal property, which will be returned when the suspect is released. The suspect is also checked to see if he or she is intoxicated and usually is allowed to make a phone call. Finally, an officer puts the suspect in a jail cell, usually with other recently booked suspects.
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 depends on the severity of the crime but is also at the judge’s discretion. Some jurisdictions have bail schedules which recommend a standard bail amount.
In determining bail, a judge may take into account this amount but will also consider the defendant’s criminal record (if any), his or her history of showing up for past court appearances, ties to the community, whether the suspect is a danger to others and any other concerns that may be raised by the defendant’s attorney.
Once a court has set the amount of your bail, that amount, or a specified percentage, must be “posted,” or paid to the court. Generally you can pay in cash or an approved cash substitute, such as a money order or cashier's check. Once you’ve posted bail, the court will issue a document or an order that shows you may be released.
COMMON TYPES OF BAIL
Cash bail means that the accused pays the full amount of bail in cash. Sometimes the court accepts checks or even a credit card.
Surety Bond(Ford Bail Bonds provides Surety Bond for the defendant)
Also called a bail bond, a surety bond can be used for any amount of bail, but it is especially useful when the accused can’t afford to pay his or her bail. This type of bail often involves a friend or relative of the accused contacting a bail agent, also known as a bail bondsman. A bail agent is backed by a special type of insurance company called a surety company and pledges to pay the full value of the bond if the accused doesn’t appear in court. In return, the bail agent charges his client a fee for this service.
By getting a friend or relative involved, the bail agent hopes that the defendant feels compelled to appear in court, since this friend or relative is probably paying the bail agent’s premium and has collateral on the line. The bail agent’s bond is also at stake, and if the defendant doesn’t appear in court (known as skipping or jumping bail), then it will be the agent who’s responsible for paying the entire bond.
If the defendant skips a court date, the bail agent, and even the family or friends of the defendant, might seek out a bounty hunter, assuming it’s legal in that state.
Release on Citation (Cite Out)
In some cases, an officer will not book a suspect at all but will instead issue a citation saying that the accused must appear in court. While this process is less thorough than taking a suspect to a police station and performing the formal booking procedure, it allows the arresting officer to focus on catching more serious offenders.
Release on Own Personal Recognizance
A judge may also choose to release a suspect on his own recognizance, meaning that he is responsible for showing up for court dates and does not have to pay bail. Personal recognizance is usually only allowed when the charge involves a relatively minor, nonviolent crime and if the defendant is not considered a danger to anyone else or a flight risk -- meaning that it's highly unlikely that the person will flee and not appear for his or her court date.
Sometimes a defendant can provide some property to act as a bond. (This is done at the court house, not with a bondsman-except in the case of part of bond being property and the remainder through a bail bondsman.) In these cases, the court gets a lien (essentially a legal claim) on the property in the amount of the bail. If the defendant doesn’t show up for his court appearances, the court can foreclose on the property to recover the forfeited bail. *The amount in which you can do a property bond is determined by the equity in the home.
BAIL KEY TERMS DEFINED
- bail-jumping - the criminal offense of defaulting on one’s bail
- bailee - a person who receives personal property from another as a bailment
- bailer/bail agent/bail bondsman - one who provides bail as a surety for a criminal defendant’s release
- bail bond - a bond given to a court by a criminal defendant’s surety to guarantee that the defendant will duly appear in court in the future and, if the defendant is jailed, to obtain the defendant’s release from confinement
- bail commissioner - a judge empowered to hold an emergency hearing to set bail when a hearing cannot be held during regular court hours
- excessive bail - bail that is unreasonably high considering both the offense with which the accused is charged and the risk that the accused will not appear for trial
- personal recognizance - the release of a defendant in a criminal case in which the court takes the defendant’s word that he or she will appear for a scheduled matter or when told to appear
- surety - a person who is primarily liable for the payment of another’s debt or the performance of another’s obligation
In criminal cases the first appearance is the arraignment. The defendant will be asked to acknowledge his identity. The defendant may have private counsel present or the court may appoint a public defender. The defendant may be told his possible punishment.
If charged with a misdemeanor the defendant is required to reply to the written charges with a plea of either guilty, not guilty or nolo contendere (no contest). The judge will set the defendant’s tentative appearance schedule.
Bail is established according to the county’s bail schedule. The defendant has a right to argue for a bail reduction. If the defendant pleads guilty at the arraignment, the judge may sentence him or her at that time.
If the defendant does not plead guilty at the arraignment, a pre-trial conference will probably be scheduled at which time plea negotiations are discussed along with witnesses and strengths/weaknesses of the case.
The next step is the trial (by judge or jury) at which pre-trial motions and issues of fact are decided.
If the defendant is found guilty the court will then impose a sentence on the defendant that could range from a fine, community service, counseling, jail time, a diversion program, substance abuse treatment, or a combination of these.
If charged with a felony, the defendant may or may not be required to reply with a plea at the initial arraignment. (The policy of presenting a plea at felony arraignment is different state by state).
As a next step, the judge may set the defendant’s preliminary hearing. (Not all states have preliminary hearings; some convene a grand jury to find probable cause.)
As with misdemeanors, bail is established according to the county bail schedule. The defendant has a right to argue to bail reduction.
At the preliminary hearing the D.A. will show the court that there was probable cause to believe that a crime was committed and that the defendant was the person who committed the crime. If the judge feels that there is enough preliminary evidence to proceed, then the defendant will be arraigned again and there will be a pre-trial conference at which time there may be plea negotiations and discussions of the issues, witnesses and strengths and weaknesses.
As with misdemeanors, the next step is trial by judge or jury where all of the retrial motions and issues of fact are decided. If the defendant is found guilty at the end of the trial, then the judge would impose a sentence,usually much more severe than with a misdemeanor offense.
FREQUENTLY ASKED QUESTIONS
Bail is a financial arrangement that a bail bonding agency will make on behalf of the criminal defendant. A bail bonding agency, acting for the defendant, will arrange with the court to have a suspect released from jail pending the trial in exchange for money or collateral, which may be cash, assets, or a bond. The court sets the monetary value of the bail.
If the individual does not turn up in court, then the bail agency may hire a bounty hunter to track the individual down. It should be noted that the U.S. is one of the only countries in the world that still allows bounty hunting.
The term Bail could be used in several distinct forms: (1) It may indicate the security-cash or bond-given for the appearance of the defendant. (2) It may also mean the bondsman (i.e., the person who acts as surety (signer on the bail bond) for the defendant's appearance, and into whose custody the defendant is released). (3) As a verb, it may refer to the release of the defendant (he was bailed out). The first meaning is the most common and should be employed for clarity.
Admission to bail is an order from a competent court that the defendant be discharged from actual custody upon bail. The discharge on bail is accomplished by the taking of bail (i.e., the acceptance by the court or magistrate of security-either an undertaking or deposit-for the appearance of the defendant before a court for some part of the criminal proceeding).
Bail is evidenced by a bond or recognizance, which as a rule becomes a record of the court. The bond is in the nature of a contract between the state on one side and the defendant and his sureties on the other.
The agreement basically is that the state will release the defendant from custody the sureties will undertake that the defendant will appear at a specified time and place to answer the charge made against him.
If the defendant fails to appear, the sureties become the absolute debtor of the state for the amount of the bond.
When talking about bail, what do you mean by the term undertaking?
An undertaking is a permissible type of bail security. The taking of bail consists of a competent court accepting an undertaking of sufficient security for the appearance of the defendant, according to the terms,or the surety will pay a specified sum to the state. Corporate sureties are commonly used, and the court will accept an admitted surety insurer's bail bond power of attorney if executed by the insurer's licensed bail agent and issued in the insurer's name by an authorized person.
Must you always use a bail bondsman?
In most State systems the defendant, or any other person, may deposit the sum mentioned in the bail order or bail schedule. Cash is accepted, and it is the practice for each court to adopt a written policy permitting acceptance of checks or money orders, upon conditions that tend to assure their validity, in payment of bail deposits. Some courts have a maximum amount over which a personal check will not be accepted. Depending upon the jurisdiction, government bonds may be accepted. Please note some jurisdictions will set a bail order requiring a corporate surety bond. This means that you can only post bail thru a surety bail bondsman.
What if someone believes that the money to be used to bail someone out is the product of criminal activity?
The judge or a magistrate may stay the release of a defendant if a peace officer or prosecutor files a sworn declaration demonstrating probable cause to believe the source of the consideration, etc. was feloniously obtained, or the judge or magistrate has probable cause to believe the source was feloniously obtained. This order is commonly known as a Nebbia Hearing or Bail Sufficiency Hearing. If probable cause exists, the defendant then bears the burden by a preponderance of evidence to prove that no part of the source was so obtained. A defendant who prevails must be released on issuance of a bail bond as specified.
What is the purpose of bail?
The purpose of bail is to assure the attendance of the defendant, when his or her appearance is required in court, whether before or after conviction. Bail is not a means of punishing a defendant, nor should there be a suggestion of revenue to the government.
Is bail a matter of right?
Although the right to bail has constitutional recognition in the prohibition against excessive bail, bail is not always a matter of right. However, with certain exceptions a defendant charged with a criminal offense shall be released on bail. Persons charged with capital crimes when the facts are evident or the presumption of guilt great, are excepted from the right to release on bail. However, a defendant charged with a capital crime is entitled to a bail hearing in the trial court to determine whether the facts are evident or the presumption great. A capital crime is an offense that a statute makes it potentially punishable by death or life imprisonment, even if the prosecutor /government has agreed not to seek the death penalty. It is presumed that the risk of flight of the defendant is too great when he or she is facing death or life in prison without the possibility of parole.
What is considered by the Court in fixing the amount of the bail?
The amount of the bail is first and foremost within the scope and discretion of the judge or magistrate, with only two general limitations: First: The purpose of bail is not to penalize or punish the defendant,but only to secure the appearance of the accused, and it should be set with that in mind. Second: Excessive bail, not warranted by the circumstances or the evidence at hand. Is not only improper but a violation of constitutional rights. In fixing the amount of the bail, the court takes into consideration the seriousness of the charge, the defendant's previous criminal record, and the probability of the defendant appearing at the trial or hearing.
Additionally, if public safety is an issue, the court may make an inquiry where it may consider allegations of injury to the victim, danger to the public and/or to the defendant him/her self, threats to the victim or a witness, the use of a deadly weapon, and the defendant's use or possession of controlled substances. A judge or magistrate setting bail in other than a scheduled or usual amount must state on the record the reasons and address the issue of threats made against a victim or a witness. The court must also consider evidence offered by the detained person regarding ties to the community and ability to post bond. The bail amount set by the court must be within the minimum range amount of bail that would reasonably assure the defendant's appearance. NOT the Maximum!
Is the Public Safety issue measured in the decision to admit a defendant to bail, or to deny Bail?
Bail can be denied in certain non-capital cases based upon a finding of substantial likelihood of harm to others. When the facts are evident or the presumption of guilt is evidently great, bail may be denied in the following instances: In felony cases involving acts of violence, or felony sexual assault offenses on another person, if the court finds on clear and convincing evidence that there is a substantial likelihood that there lease of the accused would result in great bodily harm to others. In a felony case, if the court finds on clear and convincing evidence that the accused has threatened another with great bodily harm, and that there is a substantial likelihood that the accused would carry out the threat if released. The requirement of findings based on clear and convincing evidence implies that a hearing will be held on the issue. If there is existence of a substantial likelihood of public harm or danger to the community it would be determined on the basis of the specific circumstances of the case, the testimony of witness' and prior history of the defendant. The decision to grant or deny bail is subject to review on a court petitioned motion by the defendant.