There are typically four ways to get out of county jail after an arrest. This is called "posting bail," and it can be done in a few ways:
- Paying a set bail amount by cash or check (friends or loved ones can also come to the police station and pay this for you)
- Signing over ownership rights to property instead of using money
- Giving a bond in the total amount of your bail (this is essentially a legally-binding promise to pay the money if you don't appear for your court date)
- Signing a statement promising to come to court at the required time (this is called released "on your own recognizance" or O.R. bond)
Posting bail usually consists of cash or a piece of property with cash value. You give the money or property to the court and promise to return for your court date(s). When you show up to your set court date, the court will return your money or property.
If you decide not to attend your court date, the courts will keep your money or property. They will likely issue a warrant for your arrest, which means you may be caught by law enforcement officers and be placed back in jail.
A bail bond works similarly, but the money comes from a third party or company.
Some people have the option to be released on their own recognizance. This may depend on the criminal charges you are facing.
These various options for posting bail are explained in more detail below.
The Court Process For Setting Bail
When you are arrested, you will likely spend some time at the police station while they process your information. Police officers cannot hold you indefinitely. Within a certain time, they must initiate a criminal case. This introduces you to the court system.
If the police file criminal charges, you can leave once your bail amount is decided and posted. Bail is determined in two ways:
- A judge reviews the case and sets bail
- Standard bail amounts are listed in a chart for your state or local jurisdiction (called a bail schedule)
Sometimes people are arrested over a weekend when judges are not working. Being arrested on a Friday often means spending the weekend in jail and seeing a judge on Monday to set bail. You might need to wait until the judge returns to work on a Tuesday if that Monday is a holiday.
Common crimes, or some less serious crimes, may have a chart with set standards for bail. In these cases, you pay bail once you have the fixed amount.
Bail Bonds: The Basics
A bond promises you will show up for your court date. You give it to the courts; they do not cash it if you show up for your court date. This service is not free, however.
It is typical for the bond's purchase price to be 10% of the value. For example, if your bail is $7000, you will pay about $700 to purchase a bail bond. This $700 is not refundable but allows the bail bond company to loan you the $7,000 to set bail and leave jail.
Purchasing a bail bond has risks and consequences. If you post bail, appear in court, and meet all the court-ordered requirements, you usually get the full bail amount returned to you. There are typically some small administrative fees you do not get back from the court.
Bonds can be costly but are sometimes the only option. Buying a bail bond will cost 10% of your bail amount, and you may need to provide other assurances to the bail bond company or bondsperson (historically called a “bail bondsman"). They may ask for collateral, like a car title, to ensure you show up to court.
The bondsperson is putting themselves at risk by giving you a loan and hoping you show up to court. They lose the $7,000 they lent you if you do not attend your court date because the court keeps that money.
To recover their lost money, they cash in on the collateral. A bondsperson or bond company will sell your car since they have the title and take the money from the sale.
Getting Released On Your Own Recognizance
To get an O.R. release, you may have to request one at your first court appearance before a judge. The first appearance may also be referred to as arraignment, even though these are different things. You can ask for a lower bail if your O.R. release request is denied.
Certain factors can help a judge decide to release you on your own recognizance. These factors can include:
- Having close family members living in the community
- Your ties to the community in which you were arrested
- Being raised in or living in the community for several years
- Having a job in the community
- Having no criminal history; first time arrested
- A criminal history that only includes minor crimes and misdemeanors
- Having a good track record of showing up to court when required in the past
- Not being a safety risk to yourself or others
Eighth Amendment Protections from High Bail
The Eighth Amendment of the U.S. Constitution says U.S. citizens cannot have an excessive bail amount set against them. It also means the government cannot raise money by setting high bail amounts. Lastly, a high bail cannot be used just to punish a person for being arrested.
The Eight Amendment regulates and prevents bail amounts from being misused. It works to ensure bail money guarantees that an arrested person returns to court but is not an extra punishment for them.
The bail amount must be considered reasonable. However, most states consider flight risk and public safety concerns when setting bail. A high bail may be set to prevent someone from fleeing the state or country or to keep them in jail and prevent safety risks.
When High Bail Is Legal
The Eighth Amendment offers some protections, but judges can use high bail amounts to stop an arrested person from getting out of jail.
Excessive bail might be set for someone:
- Arrested on suspicion of dealing drugs
- Charged with murder or other serious crime
- Facing domestic violence charges that may endanger their family
- Posing a clear risk to themselves or society
- Serious crimes where flight is a real possibility
People have argued that setting high bail to keep some people in jail violates the Eighth Amendment. To date, almost all have yet to be successful with this argument.
Options To Afford Your Bail Money
Bail might be set at a reasonable amount, but still cost too much for someone to afford on the spot. Your attorney can file a motion to reduce bail at any appropriate time.
After the motion is filed, the arrested person will wait in jail until they:
- Attend a special bail hearing
- Address the issue during their first court appearance
The judge will consider factors such as:
- Current financial situation
- Current charges you are facing
- Any past criminal record
- Available financial resources
- What they observe of your character in person or through arrest documentation and legal paperwork
- The case presented by your defense attorney
If the judge decides to lower your bail amount, you can leave jail, and your case will progress over the following weeks and months after you return home.
When To Call an Attorney After an Arrest
Some states and law enforcement processes will allow you to make a phone call to an attorney and seek legal advice soon after arrest. They might provide a booklet of defense attorneys or let you look one up on your mobile phone.
Others may only let you contact an attorney within a specific time or while using the police station phones. When you get the chance, you can call and find a criminal defense lawyer to advise you on bail and your upcoming court hearings. If you cannot afford an attorney to defend you, you can request that the court appoint the public defender or a private attorney to represent you.
What happens after your arrest will depend on the unique circumstances of your case and whether you have a strong advocate by your side. Find an experienced criminal defense attorney near you for help today.