It’s two in the morning and you get a call from a friend or loved one who has been arrested. They’re upset and they need help, now! What do you do?
The key to getting someone out of jail usually involves paying bail. But before being released, a defendant must complete the booking process—a bureaucratic and often humiliating procedure. Once that’s completed, the defendant can post bail according to a bail schedule and get released. Or, the defendant awaits arraignment (where the amount of bail can be changed by the judge) or attends a special hearing on setting bail.
In some instances, no bail is required for release (as explained below). Usually, though, a court will require payment of bail before release. Every defendant who is released must agree to return for scheduled trial and hearing dates, as well as to abide by certain conditions while awaiting trial. Defendants who have committed a capital crime or are considered a high flight risk might be denied bail—that is, these defendants will not be released after arrest and prior to trial. Federal and state laws differ as to when judges have the discretion not to grant bail.
No, an attorney is not needed to post bail or to get a defendant out of jail. However, a defendant charged with a crime that results in a prison or jail term is entitled to counsel. And a defendant being questioned about matters relating to an alleged crime may request an attorney be present. In these situations, if the defendant cannot afford an attorney, the court will appoint one. (Read more about criminal defense counsel.) The advantage of retaining an attorney at the time of arrest is that the attorney may be able to get the bail reduced or get charges reduced (resulting in lower bail).
The timeline may go as follows:
Bail is security (money or property) that a defendant posts with a court. The payment does two things: It grants the defendant freedom (at least until the date of trial); and it discourages the defendant from skipping town (or the trial). If the defendant doesn’t show up as planned, the money or property is forfeited and the defendant is subject to arrest, again.
A judge sets bail based on factors such as:
The purpose of bail is not to punish the defendant. When it comes to common crimes—for example, shoplifting or reckless driving—the police sometimes use preset bail schedules. In those cases, the defendant can walk out of the police station after paying the scheduled amount—a sequence sometimes referred to as “catch and release.” The advantage of paying the scheduled payment is that the defendant does not have to wait for a judge’s determination of bail. The disadvantage is that if the defendant waits to argue for a lower amount, a judge may set lower bail than the schedule.
No, sometimes, after considering factors such as the seriousness of the crime, the lack of a criminal record, and the defendant’s family relationship and community standing, a judge will permit the defendant to be released without bail (referred to as a “release O.R.” or a release on own recognizance).
Yes, if the defendant fails to show up for the scheduled trial date or hearing, bail is forfeited and whatever was paid (or “posted”) will be subject to forfeiture—that is, it will become the property of the court. There are additional financial costs and risks if you use a bail bond service (see below). If you post bail for someone, you might also have to answer questions in court as to the source of the money used to pay bail.
A bail bond service is similar to a loan company. In return for paying a non-refundable fee (known as a “premium” and typically ten percent of the bond amount), a bail bond company agrees to pay the full amount of the bond. You will not get the premium back even if the charges against the defendant are dismissed the next day. Like a loan company, the bail bond service company requires that you secure the arrangement with some collateral, such as a car, house, or other property. Again, if the defendant fails to appear when required, the bail bonds company can go after you for the collateral to repay its payment to the court.
Regardless of whether a defendant is released with or without bail, the defendant must abide by certain conditions or be subject to re-arrest. The defendant may be required to submit to certain blood or DNA testing, consent to periodic searches, or meet with a probation officer. In other words, the defendant must give up certain rights in order to obtain freedom.