BAIL FAQ

What is bail?

Bail is a legal mechanism guaranteed by the Eighth Amendment of the U.S. Constitution. Secured bail refers to a system where a set amount of money or property is pledged to the court as a guarantee that the defendant will appear for trial. If the defendant fails to do so, the bail amount is forfeited, and the defendant may be apprehended.

What does a bail agent do?

A bail agent, often referred to as a bail bondsman, plays a critical role in the U.S. criminal justice system by providing a way for accused individuals to secure their release from jail until their trial or next court appearance. Acting as a third-party guarantor, the bail agent ensures that the defendant will return to court when required, thereby helping maintain the integrity of the justice process.

Confused by legal terminology?

If you are, you're definitely not alone. The American justice system uses a specialized vocabulary that can seem archaic and very confusing to those who have never been exposed to it previously.

Luckily, there are a lot of resources available online for those looking for assistance. The Offices of the United States Attorneys has provided a Legal Terms Glossary for just such help.

This site is also a good resource for anyone who has been charged with a federal offense as the federal court system can have very different operating procedures than state or local courts.

How does the pretrial release process work?

When someone is arrested (in states that operate with commercial bail), a determination is made as to the type of pretrial release that will be considered based on the severity of the charge. For low level offenses, defendants are often cited and released or released on their own recognizance.

For more serious charges, a bail amount is often set by an officer of the court using the bond schedule maintained by that jurisdiction. Once a bail amount has been set, the defendant can then exercise his right to post bail. Initial bond settings are often reviewed within a few days if the defendant has not posted bail. Typically, the defendant enlists the help of family and friends to work with a 3rd-party commercial bail agent to post their bond for a small fee (premium). This additional layer of accountability ensures that the defendant will appear at all court proceedings and adhere to any other conditions set by the court.

Once the defendant appears at all court proceedings and the case has been adjudicated, the bond is then discharged by the court releasing the financial responsibility of the bail agency based on the completion of the case.

What are the different types of pretrial release mechanisms available to a defendant?

While pretrial processes differ slightly from state to state, these are typically the main types of pretrial release options:

If a defendant is not deemed a risk to the community or a flight risk, a judge may release that person on their own recognizance. This type of release typically occurs with low level non-violent, first time offenders. It means that they do not have to put up any money, but must simply promise to appear for all court appearances.

If a defendant is not deemed a serious risk to the community or a flight risk, but there may be other circumstances (substance abuse, mental health, etc.), a judge may release that person to a pretrial service agency. This taxpayer funded agency is then responsible for ensuring that the defendant shows up for all court appearances. Additionally, these agencies may also be responsible for ensuring that the defendant attend substance abuse classes or seek mental health assistance, etc. In recent years, the expansion of state funded pretrial services often include onerous and restrictive “conditions” set by the court mirroring that of probationary conditions – all before any conviction at all.

If a defendant is deemed a risk to the community or a flight risk, and a judge/magistrate has set a bond using a bail schedule, the defendant can secure his release by paying the full amount of the bond to the court. This payment is a deposit to the court and will be refunded (less court costs and fees imposed by the judge) if the defendant appears for all court proceedings until final adjudication of the case, and once the bond has been exonerated by the court. Most jurisdictions require an official filing by the party who made the deposit for release of the funds.

If a defendant is deemed a risk to the community or a flight risk, and a judge/magistrate has set a bond using a bail schedule, the defendant can secure his release by paying 10% of the amount of the bond amount directly to the court. This payment is a deposit to the court and will be refunded (less court costs and fees imposed by the judge) if the defendant appears for all court proceedings until final adjudication of the case, and once the bond has been exonerated by the court. Should the defendant fail to appear for a required court appearance, the court will forfeit the balance of the amount of the bond, issue a warrant for the defendant’s arrest, and enter a default judgement against the defendant for the amount of the bond.

If a defendant is deemed a risk to the community or a flight risk, and a judge/magistrate has set a bond using a bail schedule, the defendant can secure his release by paying the full amount of the bond to the court. If the defendant does not have the full amount of the bond, they can use a third-party entity, in this case a state licensed and regulated bail bond agent, to post the bond for them. This is typically done for a small fee or premium determined by the state, usually 10% or less of the bond amount (i.e., $1,000 bond would cost a defendant $100). The premium paid to the bail bond agent is much like a premium fee paid on any insurance policy. It is non-refundable and fully earned upon payment. The bail agent, for the premium paid, plays an essential role to both the defendant and court by guaranteeing that the defendant shows up for court. If the defendant fails to appear, the bail agent is responsible for either retrieving the defendant and bringing them back to court or paying the full amount of the bond to the court.

What are bond schedules?

Bond Schedules are predetermined bail amounts that can be used to quickly and effectively set a bail amount for a defendant when a judge is not present. Bond schedules are typically developed by a panel of judges in a jurisdiction and are reviewed and revised on an annual or other predetermined basis. The purpose for the creation of bond schedules was to allow for release on nights and weekends when courts were not in session and also to facilitate and speed up the release process.

There have been several arguments made against bond schedules as being arbitrary money schemes and unconstitutional. However, we disagree and view bond schedules as a legal extension of the judiciary which, when used appropriately, allow for the timely and expedited release of defendants. Individual consideration and bail setting by judges, however, remains the norm in most jurisdictions.

What happens if a defendant fails to appear for court?

If a defendant fails to appear for court, the bond goes into forfeiture status and a warrant for arrest is issued for the defendant. Each jurisdiction utilizes different timeframes before the court issues a default to demand payment, but typically the defendant has a certain amount of time to get back to court (i.e., 30/60/180 days) prior to the default. However, in every case, a warrant is issued for the defendant after failing to appear as required.

If a defendant is on an OR release, a warrant is simply entered into the states system for the defendant. In these cases, there is rarely any proactive searching by authorities for the defendant. The defendant will only be returned to court, and the warrant served should they be arrested for committing another crime or during the course of regular police activity, such as during a routine traffic stop. It is not uncommon for jurisdictions to have thousands of outstanding warrants for these types of releases due to the lack of resources by law enforcement to effectively handle the large caseloads.

If a defendant is on Pretrial Services Programs Release, a warrant is simply entered into the states system for the defendant. In these cases, there is rarely any proactive searching by authorities for the defendant. The defendant will only be returned to court, and the warrant served should they be arrested for committing another crime or during the course of regular police activity, such as during a routine traffic stop. It is not uncommon for jurisdictions to have thousands of outstanding warrants for these types of releases due to the lack of resources by law enforcement to effectively handle the large caseloads.

If a defendant is on a 10% Bond Release and fails to appear, a warrant is issued for their arrest and the full amount of the bond is forfeited. If payment is not received in full soon thereafter, a default judgement is issued against the defendant for the full amount of the bond. Again, these types of forfeitures are rarely on the priority list for authorities to proactively search for the defendant.

If a defendant is released on a financially secured bail bond and fails to appear, the process is much different. Because a licensed bail bond agent (surety) is involved and accountable for the full amount of the bond, there will be a substantial effort put forth by the bail bond agent to find and retrieve the defendant into custody. If the defendant is returned to custody within the allocated time period, the bail bond agent can be released off the bond (minus any court determined fees). If the defendant is not returned to court within the allocated time period, the bail agent pays the full amount to the court. Licensed bail bond agents are state regulated and follow strict guidelines with respect to apprehension methods and operate within the scope of the law in returning defendants to court. Unlike other forms of release, agents incur 100% of the expense and effort to return defendants to court – even returning defendants who have fled the state to avoid prosecution.

Does bail money get returned?

There is a difference between bail and a bond. If a defendant is released before trial after paying a full cash bail, those monies are returned following the disposition of the case (charges dropped, acquittal, or sentencing). However, if a defendant is found guilty and part of their sentence includes court fees and fines, these may be subtracted from the cash bail before it is refunded to the defendant.

In the case of a bail bond, the situation is very different. In this case, the bonding agency is the one who puts up the total bail amount. The defendant (or their representative) contracts with the bonding agency and agrees to pay a fee for the service. This fee is generally 10% of the total bail amount. These service fees are not refundable once the case is over as they are the payment for the bondsman's services. Since the defendant did not put up any of the actual bail amount themselves, they are not entitled to receive a refund of the bail. Additionally, defendants will remain responsible for the full amount of any court fees and fines they may have been assigned.

However, if a defendant (or their representative) puts up any real or personal property as collateral towards a bond, this property will be returned to them (and any liens will be removed) once the case is complete as long as the defendant did not forfeit the bond or continue to owe any money to the boding company.