By Sarah Williams, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed September 01, 2023
This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw’s team of legal writers and attorneys and in accordance with our editorial standards.
The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area.
Bail is the amount of money a defendant pays to the court to secure their pretrial release. It also ensures future court appearances. Bail is often used in criminal court proceedings but can apply in civil court cases. This article discusses the history of bail, how and when it applies, and what happens if a defendant fails to abide by the conditions set by the district court.
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.
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 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.
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:
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.
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.
There are several times during a criminal case when bail could apply, including the following:
At a bail hearing, a judge has several options, including:
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.
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.
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.
A judge may find good cause to deny bail after considering the following:
The accused is then remanded into custody and turned over to the appropriate law enforcement officials.
If a defendant violates the terms of their release on bail, they may face several penalties:
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.
Contact a qualified criminal lawyer to make sure your rights are protected.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.