{"id":352243,"date":"2023-09-01T09:00:13","date_gmt":"2023-09-01T14:00:13","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/criminal\/criminal-procedure\/bail-proceedings-background.html"},"modified":"2023-09-01T09:00:13","modified_gmt":"2023-09-01T14:00:13","slug":"bail-proceedings-background","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/criminal\/criminal-procedure\/bail-proceedings-background.html","title":{"rendered":"Bail Proceedings: Background"},"content":{"rendered":"\n
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Bail Proceedings: Background<\/h1>\n
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\n By Sarah Williams, J.D.<\/a> | Legally reviewed by Melissa Bender, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. 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<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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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.<\/p>\n\n <\/div>\n\n

Bail<\/a> is the amount of money a defendant pays the court to secure their pretrial release. It also ensures future court appearances. <\/p>\r\n

You may have questions about bail and how to get pre-trial release, whether for yourself or someone in your life. Because every case is different, you’ll likely want to discuss them with a criminal defense attorney<\/a>. But there are a few things to know about bail before your meeting.<\/p>\r\n

Is Bail a Constitutional Right?<\/h2>\r\n

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<\/a> 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.<\/p>\r\n

The Eighth Amendment to the U.S. Constitution<\/a> 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.<\/p>\r\n

The Rise of Bail Reform<\/h2>\r\n

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

In effect, economically disadvantaged defendants serve time without a conviction for a crime. Some defendants lose their jobs, homes, and even their families.<\/p>\r\n

This is not a new problem. President Lyndon B. Johnson<\/a> sought a remedy in the Bail Reform Act of 1966. But progress has been slow. The bail reform movement aims 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).<\/p>\r\n

Bail or Bond?<\/h2>\r\n

Bail and bond<\/a> 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.<\/p>\r\n

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.<\/p>\r\n

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<\/a>. 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.<\/p>\r\n

Bail Proceedings in Civil Cases<\/h2>\r\n

Most people think of bail only in terms of criminal cases, but bail may also be imposed in a civil case.<\/a> Whether it’s imposed depends on state law. In civil cases, bail applies to:<\/p>\r\n