Bail Proceedings: Background

Bail is the amount of money a defendant pays to the court to secure their pretrial release. It also ensures future court appearances. 

Is Bail a Constitutional Right?

Bail law came to North America from English legal traditions. Even before the adoption of the U.S. Constitution and the Bill of Rights, the Federal Judiciary Act of 1789 guaranteed a right to bail in all non-capital cases. Bail was discretionary for a person charged with a capital offense (where death is a possible punishment). Bail 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, in some circumstances, the U.S. Constitution permits holding a defendant without bail. So, while bail is a constitutional right, it is not an absolute right.

The Rise of Bail Reform

Bail reform has risen to national attention. Economically advantaged defendants with access to financial resources can pay cash bail and go home, but indigent defendants and those without financial resources remain jailed for the same criminal offenses. At times, they are detained for months, awaiting their trial date.

In effect, economically disadvantaged defendants serve time without a conviction for a crime. Some defendants lose their jobs, homes, and even their families.

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 bail towards other methods of securing court appearances. These methods include pre-trial monitoring (e.g., electronic monitoring, check-ins, drug rehab, and community supervision).

Bail or Bond?

Bail and bond are two related terms. Depending on the location and source, a person can "bail" or "bond" a suspect out of jail by posting the court-ordered amount. This secures the accused person's release from custody.

Posting bail refers to the cash payment paid to the court by a defendant. Bail money returns to the defendant or their family at the end of the trial if there are no violations of the trial court's bail conditions. Family members or friends can pay cash bail or the money for a bail bond.

When bail is too high for the defendant to pay, they may use the services of a "bail bondsman," also known as a bail bond agent. This third-party company agrees to be responsible for the debt owed to the court. A judge must issue a bond order. The defendant is then charged a fee (a percentage of the bail) to get a promise of payment from the bonding company. The fee is usually 10-20% of the bail amount. At the end of the trial, the bonding company keeps the fee.

Bail Proceedings in Civil Cases

Most people think of bail only in terms of criminal cases, but bail may also be imposed in a civil case. Whether it's imposed depends on state law. In civil cases, bail applies to:

• Contempt of court
• Failure to comply with a subpoena
• Failure to abide by the terms of a judgment

Civil bail can directly or indirectly secure payment of a debt. It's used to arrest someone and prevent them from fleeing the court's jurisdiction. It is also used to prevent them from concealing or disposing of assets.

The amount of bail set in a civil case can equate to the probable amount of damages the plaintiff could collect if they win the case. Sometimes, the bail money becomes the judgment owed to the plaintiff.

Bail Proceedings in Criminal Cases

Where applicable, criminal defendants must pay bail before their release from custody, pending trial. Bail in a criminal case aims to ensure the accused shows up for trial and is not a flight risk. A criminal court judge or other court officer sets the amount and conditions of bail.

In theory, bail is not intended as a pre-trial punishment or fine. Modern bail laws emphasize non-monetary methods to ensure a defendant's appearance at trial. This is to avoid discrimination against defendants with less financial resources.

Bail may or may not apply in misdemeanor cases, depending upon the circumstances and seriousness of the offense. Serious misdemeanors and felony cases, such as in domestic violence cases or driving under the influence (DUI) cases, 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 apply, including the following:

• 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 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 if the defendant has violated the terms of their sentence and probation; 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 (e.g., 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 bargain. The defendant changes their plea to guilty. The judge accepts the agreement but allows a stay of the sentence ("Report to jail on January 1 at 9:00 a.m. to serve your sentence"). The judge would keep the bail bond in effect (or replace 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, including:

• Pre-trial release on personal recognizance
• Release on an unsecured bond
• Release on bail with conditions
• Denial of bail for community safety or due to flight risk

Release on Personal Recognizance

The judge can release the defendant on their own recognizance. The release is on the defendant's personal promise to show up for trial.

Release on personal recognizance may be appropriate when a person has strong community ties and lawful and steady employment. A judge will also consider the impact of incarceration on the person's family and children.

Release on an 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're forced to pay the total amount of the bond.

Release on Bail

The judge can require bail and set the bail terms, 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 bail bond agent service can assist if the defendant cannot afford the cash bail.

When released on bail, a defendant signs a document promising to appear for their court date. They may also have to abide by other conditions of release. For example, the defendant cannot travel outside the court's jurisdiction or contact the victim or their family.

Denial of Bail

A judge may find good cause to deny bail after considering the following:

• The defendant's criminal history
• The seriousness of the charges
• The potential danger to the community
• A defendant's criminal record while on a prior release

The accused is then remanded into custody and turned over to the appropriate law enforcement officials.

What Happens With a Bail Violation?

If a defendant violates the terms of their release on bail, they may face several penalties:

• They will be arrested on a probable cause warrant by a police officer and held until trial
• They could face additional criminal charges for "jumping bail"
• They will lose the money they paid to the court for cash bail in forfeiture
• The bail bondsman (if used) will have to make good on the promise to pay bail to the court
• If the defendant or their family used a secured bond, the company could seize the assets promised in exchange for the bail bond
• If it was a surety bond, the defendant or family is now on the hook for all the bail money for the bail bond

Contact a Lawyer With Questions About Bail

If you are awaiting a bail hearing or have questions about the bail calculation or why it might be denied, speak with an experienced criminal defense lawyer today. Eliminate the guesswork and feelings of being overwhelmed with all the criminal procedures. A criminal defense attorney can provide free consultation on your case.