Arrests, Jail, Bail and the Criminal Justice System
Bail is a term that describes the release of an arrestee or criminal defendant after an arrest prior to the end of the criminal case. Bail can – but does not always – involve the defendant (or someone on the defendant’s behalf) paying money to a court. The money ensures that the defendant returns to court for the remainder of the criminal justice process. Bail is not a punishment given prior to a person being found guilty of any crime, but a way to ensure that criminal defendants return to court without the necessity of keeping them in physical custody the entire time they are required to appear in court.
Bail in its many forms plays an important role in the criminal justice process- It serves to both limit the amount of jail space needed and ensures that persons being charged of a crime are free of physical custody while their cases are ongoing will return to court. People can be released on bail at almost any stage in the criminal justice process, such as immediately after an arrest, or even after a court has issued a sentence.
In general, any time a person is arrested there will be three possible outcomes: they are charged and released on a promise to appear, they are charged and released on bail, or they are charged and remain in custody until the case comes to an end. Bail in its many forms is a way people can be released from jail prior to a court determining guilt.
When police or law enforcement officers arrest people, they physically take the arrestees into custody. People under arrest are typically taken by police into custody, placed into a police vehicle, and then transferred to a jail or criminal processing facility for an administrative process often referred to as “booking". During this process, the person will be booked for charges filed by the arresting officer. Sometimes law enforcement will release a person without filing charges, but if charges are filed; the arrestee will have to remain in custody until released on bail until a court renders a judgment, or until the charges/case is otherwise resolved.
Booking is the administrative process that follows an arrest. During this process, the police perform a series of tasks, such as taking the arrestee’s photo, recording personal information such as name, date of birth, and age, taking fingerprints, taking any physical possessions the arrestee has and placing them into a storage facility, searching for any warrants, performing a health evaluation, and placing the arrestee in a detainment holding area.
Post Arrest Custody Pretrial Release
After the police have arrested and booked someone, one of three things will typically happen: First, the police can release the defendant with a written notice to appear at court. Second, the police can release the defendant after he or she pays the appropriate bail amount. Third, the police can keep the defendant in custody until a court holds a bail hearing after being interviewed by the Probation Department. The Probation Department will recommend to the Court the likelihood the Defendant will return to court; based on prior arrest record, ties to the community and seriousness of the crime. In addition to these options, Defendants can also be released on an ankle monitor which will involve a fee paid to the court which is also a form of bail.
State law determines which of the three options applies in any given situation. In general, arrests for low-level crimes, such as disorderly conduct or petty larceny, will more often result in release with a written notice to appear, while more serious crimes, such as serious violent offenses, will result in the defendant remaining in custody until a court can hold a bail hearing
Bail schedules are lists of bail amounts that apply to individual crimes in any jurisdiction. In California, the Judges for each county/jurisdiction meet annually to determine and set the bail schedule for offenses/crimes. For example, a county's bail schedule may set bail for the crime of disorderly conduct at $1,000, or set a $10,000 bail for burglary.
State & County laws will determine not only what bail amounts are appropriate for each crime and whether police can release a defendant without requiring bail, but also whether defendants are allowed to post bail following booking or if they must wait for a bail hearing. They also typically allow judges significant latitude in increasing or decreasing bail when the court deems it appropriate. (Federal courts do not have bail schedules, and bail amounts are up to the discretion of the court.)
When a court holds a bail hearing, it determines how much bail applies to a specific case. Courts do not always have to allow bail, and can deny it if allowed by state law.
When the court determines bail amounts or whether to deny bail, it weighs a variety factors:
Flight Risk. Some defendants pose a higher flight risk than others. For example, defendants who are facing sentences that impose death or long periods of incarceration may be more likely to try to flee than those facing less serious penalties.
Community Connections. A person with strong connections to a community, such as someone who owns a local business or whose entire family is located in the area, may be less likely to flee or fail to reappear at court than someone who is merely visiting.
Family Obligations. Courts may be more likely to impose a lesser bail amount when a defendant is responsible for the well-being of family members or other dependents.
Income and Assets. A defendant with a lot of money or assets may not see a low bail amount as a significant deterrent, while those with few assets may be significantly affected by bail amounts outside of their resources. Similarly, a court can consider if a defendant is employed and likely to lose that employment as a result of being unable to pay bail and remaining in custody.
Criminal and Court History. People with criminal histories – especially those with histories that involved failures to appear at court – typically have higher bond amounts than those who are in the criminal justice system for the first time. For example, if a defendant has been granted bail numerous times in the past but has always violated bail conditions or failed to appear in court, courts will typically impose much higher bail than they would for someone with no past history of failing to appear. Or, they may even deny bail entirely.
Seriousness of the Crime. In general, more serious crime will have a higher bail amount than a less serious crime. For example, bail for someone accused of a minor theft may be $1,000 or less, but bail for someone accused of murder could be hundreds of thousands of dollars or more.
Public Safety. If a defendant’s release would pose a risk to the health and safety of others, or to the community at large, courts typically refuse to allow bail at all. For example, a defendant charged with conspiring to commit an act of terrorism may be denied bail, as releasing that person could pose a risk to the lives of others.
In addition to determining a bail amount that a defendant must pay to be released, courts typically impose additional limitations or requirements on defendants when making a bail determination. These limitations are similar to those imposed on people found guilty of a crime and sentenced to probation. Violating bail conditions can result in police taking the defendant back into custody until trial, as well as the forfeiture of any bail paid.
The following are typical conditions of bail:
Pretrial Check-Ins. Much like checking in with a parole or probation officer, people on bail can have to make regular check-ins with pretrial services officers. Pretrial services officers monitor defendants prior to trial to make sure they are complying with any orders or conditions imposed by the court.
No-Contact Orders. In cases where the defendant is accused of stalking, domestic violence, making criminal threats, or other similar crimes, the court typically imposes a no-contact order. The order requires the defendant to refrain from contacting the alleged victims of the crime.
Employment. Courts can require a defendant to maintain employment while on bail. If the defendant is unemployed, the court can require him or her to attempt to find employment while on bail.
Travel Restrictions. Defendants on bail are typically not allowed to leave the area unless specifically allowed by the court or pretrial services officer.
Substance Abuse. Bail conditions, especially those in cases involving drunk driving, drug possession, or other substance-abuse related offenses, typically require the defendant to refrain from using drugs and alcohol.
Firearms Restrictions. Bail conditions may require the defendant to refrain from possessing firearms, even if the charged crimes did not involve the use of firearms.
Post-Conviction or Sentence Bail
In some situations, bail is possible even after a person has been convicted of (or sentenced for) a crime. Typically, once a court issues a jail or prison sentence, the defendant must begin serving the sentence immediately. For example, if a judge sentences someone to five years in prison, bailiffs will take the defendant into custody and transfer him or her to a detention center to begin serving the sentence.
However, courts can allow criminal defendants to be released on bail after a conviction or sentencing if the defendant files an appeal. For example, if a court sentences a defendant to five years in prison but the defendant files an appeal of the conviction, the sentencing court may grant that defendant bail and allow that defendant to remain out of custody until the appeal has been heard by an appellate court.
Like other bail issues, state laws govern post-conviction or post-sentencing bail, and not all states allow for it. In states that do, the court typically has broad discretion in granting bail, as well as in determining the appropriate bail amount to set.
Bail Payment Procedures
Each jurisdiction not only has its own rules on how bail is determined and who can be released, but also has its procedures for how bail payments must be made. Typically, the payment process requires that someone travel to a specific location, such as a courthouse or a jail. A cashier, clerk, or other official at the location is responsible for receiving bail payments. The payer must provide the clerk with specific information, such as the defendant’s name, the case or booking number, and the bail amount to be paid. (The clerk or official often has access to this information, and can find out how much bail must be paid.) The payer must then submit the appropriate bail amount to the clerk.
Once the clerk’s office has received the bail payment, it notifies the corrections officials who are keeping the defendant in custody, and they release the defendant from jail. In some situations, the bail release happens almost immediately because the clerk is located in the same facility as the jail, while in other situations it may take several hours or more for the defendant to be released.
Bail payments must typically be made in cash or with some other form of accepted payment, such as credit or debit card, certified or cashier’s check, traveler’s checks, or money order. Accepted payment amounts differ from jurisdiction to jurisdiction.
Types of Bail
Many people associate bail with a specific cash amount. The general idea is that if you have the money to pay bail after you are arrested, you can get out of jail. But bail is often more complicated than that, especially when the bail amount is large.
In any state or jurisdiction there may be a variety of bail types available. While some types of bail are not available in all states or situations, and some are more or less often employed than others, defendants can expect to encounter one or more of the following types of bail.
- Cash Bond
The Booking Officer will release the arrestee after booking if that person pays a cash bond which will be given to the Court. If the defendant does not have the money, someone else can pay the bail on behalf of the defendant.
The cash bond amount is determined by the state or local bail schedule, or by a court after a bail hearing. As long as the payer has enough money to cover the full bond amount, the defendant is released from police custody.
- Own Recognizances or Personal Recognizances Bond
Sometimes, a court releases an in-custody defendant on his or her own recognizances, also known as an OR bond.
OR bond's are similar to a citation and release, only they take place after a court holds a bail hearing. If the court allows this type of bail, the defendant will be released from custody on the condition that he or she reappear in court at a later time and comply with any other bail conditions the court imposes.
3. Secured or Property Bond
A secured bond, or “property bond,” is a type of bail in which the defendant gives the court a security interest in property equal to the worth of the total bail amount. A security interest is a legal right to possess or take a specific piece of property given by the property’s owner to the secured party.
For example, when you buy a car using a car loan, your lender gives you money to buy the car. In return for that money, you give the lender a security interest in the vehicle. You and the lender agree that should you fail to repay the loan in accordance with the terms to which you both agreed, the lender can repossess the car (the collateral) and sell it to recover the money you still owe. The same is true when a bank forecloses on a home when the homeowner fails to pay the mortgage. Both are forms of security interests.
So, with a secured property bond, the defendant or some other bond payer gives a security interest in a specific piece of property to the court as a form of bail. Should the defendant fail to later appear at court, the court can seize the property used as collateral to recover the unpaid bail.
4. Bail Bond or Surety Bond
A bail bond is a form of bail payment provided on a defendant’s behalf by a bail bond agent. Bail bond agents, also known as bondsmen, are people who are in the business of paying bond on behalf of criminal defendants. When defendants use a bail bond agent, they pay the agent a fee and the agent acts as a surety, telling the court that they (the bond agents) will pay the full bond amount should the defendant fail to appear at court.
Bail bond agents make money by collecting a fee from those who want to be bailed out. Typically, that fee is 10% to 15% of the amount of bail. So, if a court sets a defendant’s bail at $10,000, that defendant (or someone acting on the defendant’s behalf) can pay a bail bond agent $1,000 and the bond agent will act as a surety on the defendant’s behalf.
Like secured or property bonds, bail bond agents typically require the defendant or the paying party to provide collateral or some other form of security against the bond. (They also require that the defendant sign a contract stating the terms of the agreement.) For example, a bond agent may require the defendant to physically give the bond agent pieces of jewelry that the bond agent can sell to recover the full bond amount if the defendant fails to appear in court. Similarly, the bond agent might require the defendant, or someone else, to sign a security interest in a car, home, or other piece of property that the bond agent can repossess if the defendant fails to appear.
Bail Bond Surety Bond
Getting Bail Money Back From the Court
Someone who has paid bail directly to the court is entitled to have that money returned if the defendant complies with all bail terms and conditions. Generally, there are two possible outcomes when someone pays bail: the bail is released back to the payer, or the bail is forfeited.
Bail Release or Refund
If a criminal defendant is released from custody on cash bail posted to the court, the bail will be repaid to the payer upon the conclusion of the case. This release or repayment of bail depends upon both the kind of bail used and the jurisdiction in which the bail is paid.
If a property bond was posted, the court releases the lien on the property. The lien release, like the release of the bail payment, typically takes several weeks or more to conclude.
In other jurisdictions, such as federal courts, the court does not automatically release bail upon conclusion of the criminal case. In such jurisdictions, the bail payer must file a document (called a “petition”) with the court, asking it to release the money paid; or, in the case of a property or secured bond, to release the lien placed on the property used as collateral.
Even if bail is released, it is common for the court to keep any fines or fees associated with the conclusion of the case.
In situations where a defendant is released from custody on bail but later fails to appear in court as required – or otherwise fails to comply with any of the conditions the court imposed when granting bail – the bail amount is forfeited.
For example, if you are arrested and pay $1,000 in cash as bail, you will lose that $1,000 if you miss your court date. Similarly, if someone pays bail on your behalf, the payer forfeits should you miss court.
If a property bond is involved and the defendant fails to appear, the court can repossess or foreclose on the secured property. For example, if your father uses his home as the collateral in a secured property bond and you fail to appear, the court can foreclose on the home and sell it at auction to recover the bail amount.
Bail Violation and Failure to Appear Petitions
If a defendant fails to appear in court and forfeits bail, there is still a chance the court will reinstate bail (allowing the defendant to remain out of custody until the case concludes) and return the bail that has already been paid. A defendant can petition a court to reinstate bail (or to not forfeit bail- if late to court) if the defendant can show that there were good reasons – such as experiencing a medical emergency – why he or she missed court. If the Defendant is on surety bond- the bail agent will provide the court with a letter of reassumption of liability in order to reinstate the defendant back on bond.
Getting Bail Money Back From the Bail Bond Agent
When a defendant uses a bail bond agent to post bail, the defendant must pay the bondsman’s fee, and may also have to hand over collateral or sign a security agreement. Should the defendant comply with bond conditions, the bond agent will return the collateral or release the lien created by the security agreement upon the conclusion of the case. However, the bond agent’s fee (the 10% to 15% of the total bail amount) is not returned no matter the outcome.
Bond Forfeiture and Fugitive Recovery Agents
Should a defendant who used a bond agent’s services fail to appear in court or otherwise violate bail terms, the agent will reach out to the defendant and co-signer to arrange with the attorney of record a new court date to petition the court to reinstate the bond.
If bail agent can not contact the defendant they usually try to find the defendant, take that person into custody, and physically take the defendant back to police custody. Courts typically grant bond agents a grace period after a defendant violates bail terms. If the agent can return the defendant to court within that grace period, the court will not require the agent to pay the full bail amount.
As part of this process the bail bond agent can employ bounty hunters, also called bail enforcement agents, to track down and apprehend the defendant. Fugitive recovery agents or bond enforcement agents, like bail bond agents, are not government employees or law enforcement officers. They do not have general arrest powers, but can arrest a defendant who used the bail bond agent’s services. This is because as part of the contract defendants sign with the bail bond agent, defendants typically agree to allow the bond agent, or fugitive recovery agents contracted with the agent, to enter their home, arrest them, or take other actions that would typically be illegal without the defendant’s consent.
Note that state laws on both bail agents and bounty hunters can differ significantly, and not all states allow for bail bond agents or fugitive recovery agents.