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Bail Proceedings: Background

Bail is an amount of money ordered by the court to ensure that a defendant in a trial performs their duty. Usually, that duty is to appear in court. Bail is often used in criminal court cases, but it can also be used in civil court cases. This article discusses the history of bail, how it is used, when it is used, and what happens if a defendant fails to abide by the conditions set by the court.

Is Bail a Constitutional Right?

Bail law came to North America with the English legal traditions. Even before the adoption of the U.S. Constitution and the Bill of Rights, a judiciary act in 1789 guaranteed a right to bail in all non-capital cases. For a person charged with a capital offense (where death is a possible punishment), bail was discretionary. It depended on the seriousness of the offense.

The Eighth Amendment to the U.S. Constitution states that "excessive bail shall not be required." Regardless, the Supreme Court has ruled that the U.S. Constitution permits holding a defendant without bail in some circumstances. In other words, while bail is a Constitutional right, it is not an absolute right.

Bail or Bond?

It may be helpful to understand two related terms: bail and bond. In practice, both "bail" and "bond" are used as nouns and verbs.

Depending on the location, a person can "bail" or "bond" a suspect out of jail. By posting money, a person's release from custody can be secured.

Bail can also refers to the cash payment paid to the court. Bail money is returned to the defendant at the end of the trial if all of the requirements of the court have been met.

When bail is too high for the defendant to pay, they may use the services of a "bail bondsman." This is a third party that agrees to be responsible for the debt owed to the court. A bond order must be issued by a judge. The defendant is charged a fee in order to get that promise of payment from the bonding company. The fee is a percentage of the bail that is owed. At the end of the trial, the bonding company keeps the fee.

Cash bail or money for a bail bond may be paid by the accused, their family members, or their friends.

Bail Proceedings in Civil Cases

Most people think of bail only in terms of criminal cases, but bail may be imposed in a civil case as well. Whether or not it will be depends on state law. In civil cases, bail may be limited to contempt of court, failure to comply with a subpoena, or failure to abide by the terms of a judgment. Civil bail can be used to directly or indirectly secure the payment of a debt. It may also be used to arrest someone to prevent them from fleeing the court's jurisdiction or to prevent them from concealing or disposing of assets.

The amount of bail set in a civil case can be based on the probable amount of damages the plaintiff could collect if they win the case. Sometimes, the bail money will be applied to pay the judgment to the plaintiff.

Bail Proceedings in Criminal Cases

A criminal defendant may be ordered to pay bail before being released from custody before their trial. The purpose of bail in a criminal case is to ensure the accused shows up for trial. A judge or other court officer sets the amount and conditions of bail.

In theory, bail is not intended to be a pre-trial punishment or a fine. Modern bail laws reflect an intentional emphasis on non-monetary methods to ensure a defendant's appearance at trial. This is meant to avoid discrimination against poorer defendants.

Bail may or may not be required in misdemeanor cases, depending upon the circumstances and seriousness of the offense. Serious misdemeanors and felony crimes often require a judge to set bail.

When Would a Bail Determination Take Place?

There are several times during a criminal case when bail could be addressed:

  • After an arrest, bail can be set by a bail commissioner, justice of the peace, or other designated official.
  • Bail can be set at an arraignment hearing or an initial court appearance.
  • After the accused has been convicted and sentenced for a crime, the defense attorney can file a motion for reconsideration to ask the judge for a lighter sentence.
  • After a prosecutor has filed a motion of revocation after a guilty verdict because the defendant has violated the terms of their sentence. For example, they may have failed to attend a pretrial diversion program or failed to pay fines on time.
  • A judge can revisit bail at other times during the criminal proceedings (when criminal charges are modified, when new charges are added, etc.).
  • Post-conviction bail is also possible. In such a situation, a defendant on bail has their attorney negotiate a plea agreement, and then they change the plea to guilty. The judge accepts the agreement, but allows a stay of the sentence ("Report to jail on January 1 at 9 am to serve your sentence'"). The judge would keep the bail bond in effect (or replaces it with a lower cash bail) until the beginning of the jail sentence.

Possible Outcomes of a Bail Hearing

At a bail hearing, a judge has several options.

Pretrial release on personal recognizance: The judge can release the defendant on his or her own recognizance. Basically, this means the person is released on their own personal promise to show up for trial. Release on personal recognizance may be appropriate when a person has ties to the community and has lawful and steady employment. The judge may also consider the impact of incarceration on the person's family and children.

Pretrial release on unsecured appearance bond: The judge can release a criminal defendant by setting a bond amount, but the defendant is not required to post any cash at that time. If the defendant fails to appear in court or violates any terms of the bond agreement, they could be forced to pay the full amount of the bond.

Pretrial release on bail: The judge can require bail and set the terms of bail, including the amount and any special conditions for release. Bail can be paid in cash or the judge may grant a bond order for a secured, unsecured, or surety bond. A bondsman service may be used at this time.

No release, denied bail: After considering the defendant's criminal history, the seriousness of the charges on their criminal record, and the perceived threat they pose to society, the judge may find good cause to deny bail. The accused is then "remanded" into custody. That is, they are turned over to the appropriate jail officials.

If the defendant is released on bail, they will also have to sign a document promising to appear for their court date. They may also have to abide by other conditions of release. For example, the defendant may be forbidden from traveling outside of the court's jurisdiction, or forbidden from contacting the victim or the victim's family.

What Happens If Bail is Violated?

If a defendant violates the terms of their release on bail, several things will happen.

  • They can be arrested and held in custody until trial
  • They could face additional criminal charges for "jumping bail."
  • They will lose the money they paid to the court for cash bail.
  • If a bail bondsman was used, that company will have to make good on its promise to pay bail to the court. If the defendant or their family used a secured bond, the company can seize the assets that were promised in exchange for the bail bond. If it was a surety bond, the defendant or family is now on the hook for all of the bail money for the bail bond.

Bail Reform

Bail reform has once again risen to national attention. While those with money buy their way out of jail and go home, the poor who have been jailed for the same criminal offense are incarcerated for months while they await their court date. They are, in effect, serving time without ever having been convicted of a crime. Some defendants lose their jobs, homes, and even their families, without even having been convicted.

This is not a new problem. President Lyndon B. Johnson sought a remedy in the Bail Reform Act of 1966, but progress has been slow. The bail reform movement seeks to move the justice system away from unaffordable high cash bails and towards other methods of securing court appearances through pre-trial monitoring (check-ins, drug rehab, and community supervision).

Questions About Bail Proceedings? Eliminate the Guesswork. Hire a Criminal Law Attorney.

If you are awaiting a bail hearing or have questions about how bail is calculated or why it might be denied, speak with an experienced, local criminal defense lawyer today.

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