Bail Explained: Cash Bail, Bonds, and Pretrial Release

Getting arrested doesn't necessarily mean staying in jail overnight or even until trial. In most cases, a defendant can get out by posting bail. How much that freedom costs, and how quickly it can happen, depends on several factors. Some defendants pay a fixed amount and walk out within hours. Others wait for a bail hearing, where a judge can raise, lower, waive, or even deny bail altogether. And for those who can't pay the full amount out of pocket, a commercial bail bond is usually the fallback but at a real financial cost. Below, we walk through exactly how bail amounts are set, what a bail bond really costs compared to cash bail, and what's at stake if a defendant fails to appear.

How Does Bail Work?

Bail is security (money or property) that a defendant (or someone on the defendant’s behalf) posts with a court. The purpose of bail is not to punish the defendant. Its purpose is to ensure the defendant shows up for future court dates. Bail can generally be paid by cash or bond.

The payment of bail does two things: It grants the defendant freedom (at least until the date of trial) and discourages the defendant from skipping town (or the trial). If the defendant doesn't show up as planned, the money or property put up as security can be forfeited (given up) and the defendant is subject to arrest, again.

How Much Does Bail Cost?

Bail amounts vary by jurisdiction and case. For less serious offenses, bail might run in the thousands of dollars. But more serious charges can result in bail costs that run into the tens or hundreds of thousands of dollars, especially if the defendant has a long rap sheet or history of failing to appear in court.

How Bail Is Set

Either a judge sets bail at a bail hearing or arraignment or, in some cases, a defendant can pay a predetermined bail amount based on the most severe charges. The latter option is called a bail schedule.

Bail Schedule

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 bail schedule typically lists bail amounts by charge. For example, felony theft might have a bail amount of $5,000 and DUI might be $10,000.

The advantage of paying the scheduled payment is getting out of jail pretty quickly—usually after booking. The defendant doesn’t have to wait for a judge's determination of bail. The disadvantage is that the defendant won't be able to ask for a reduced bail amount or release without bail. 

Bail Hearing or Arraignment

Some charges don’t qualify for release by bail schedule. The law might require the defendant to go before the judge (often called a mandatory appearance). Or, as noted above, a defendant might opt to wait for the judge to make a decision at a bail hearing.

At a bail hearing or arraignment, a judge sets bail based on factors such as:

• the seriousness of the crime,
• the defendant's ties to the community (family, friends, job),
• the risk to public safety, and
• the defendant's criminal history.

Most, if not all, states also require the judge to consider the defendant's financial ability to pay bail when setting an amount.

A defendant or defense attorney can make their case to the judge that the defendant isn't a flight risk or risk to public safety. If they can make a convincing case, the judge might release the defendant on conditions only or for a low bail amount.

What Is O.R. Release?

O.R. release stands for “own recognizance release.” It means the defendant will be released on their promise to appear at future court hearings, rather than posting bond. To be considered for O.R. release, the defendant must typically wait for a hearing.

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 might permit O.R. release for a defendant.

While O.R. release doesn't cost anything, it’s not a free pass. It comes with strings attached. Every defendant who is released—with or without paying bail—must agree to return for scheduled trial and hearing dates, as well as to abide by certain conditions while awaiting trial, or risk being rearrested.

How Soon Can You Post Bail After Arrest?

Before posting bail and being released, a defendant must complete the booking process—a bureaucratic and, sometimes, humiliating procedure. Once that's completed, the defendant, or someone on the defendant’s behalf, can post bail according to a bail schedule (assuming it's an option) without seeing a judge. This process could take several hours or longer.

Instead of paying the scheduled bail amount (or if it's not an option), the defendant may await arraignment or a special hearing to have bail set. State laws generally require that a defendant be brought before a judge for one of these hearings within 48 to 72 hours after arrest. The benefit of waiting is that the judge might reduce or waive the bail amount. The downside is sitting in jail.

Can a Judge Deny Bail?

In some states, judges can deny bail if the defendant is:

• charged with a capital offense (subject to the death penalty), or
• considered a high flight risk (not likely to return to court) and danger to public safety.

Defendants who are denied bail are detained in jail pending trial.

Federal and state laws differ as to when judges have the discretion not to grant bail. Some states place the right to bail in their constitution, and a judge cannot deny bail, even in murder cases.

What Is the Process for Getting Out of Jail After Arrest?

The process and timeline from arrest to release may go as follows:

• The defendant is arrested.
• The defendant is taken to the police station and booked. Booking involves recording the suspect’s information, fingerprinting, taking mugshots, and checking for warrants, among other procedures.
• After booking, the defendant may be offered the option to pay bail based on a schedule of common crimes—for example, $500 for a nonviolent misdemeanor. If the defendant accepts this option and pays bail, the defendant is released.
• If the defendant doesn't qualify for scheduled bail (or chooses not to pay), the defendant must wait in jail (or a holding cell at the police station) until a court hearing is held. This is typically the arraignment.
• At the arraignment, the defendant may enter a plea and the judge will set bail or allow release on one's recognizance without bail. The defendant may pay bail at that time or any time thereafter.
• If the arraignment doesn't occur within 48 to 72 hours, the defendant will be given a bail hearing (or in some cases a special hearing to determine if there is probable cause for the charges). The defendant may pay bail at that time or any time thereafter.
• Once bail is posted, it can take a couple of hours for the jail to process the defendant’s release.

How to Post Bail or Bond

You can post bail or bond on your own or ask someone else to post it on your behalf. Some jails or detention centers only allow cash or money orders, while others might accept credit cards (usually with a fee). Check with the jailer or look online if you’re posting bail on another’s behalf. You might need to call the jail and check on the exact bail amount and bring that exact amount. You’ll likely need the person’s full name and date of birth.

Paying the full amount in cash is often the best deal in terms of cost. The entire amount will be returned once the defendant makes all their required court appearances.

If you can’t afford the full bail amount, contact the court or a bail bond agency to learn your options for securing a bond. You can often get a bond for around 10% of the full cash amount. The bail bond company will then arrange for the defendant’s release if that’s the option you choose. The downside of this option compared to cash is that the bond company keeps the 10% even if the defendant appears at every hearing.

Are There Different Types of Bonds?

Yes. While most states still rely on private bond companies, a few states prohibit them or offer alternative options.

Commercial Bonds

Commercial bail bonds are the most common and typically the most expensive. This bail bond service is similar to a loan company. In return for paying a nonrefundable fee, a bail bond company agrees to put up the full amount of the bail. The fee is usually called a premium and it amounts to 10 to 15% of the full bail amount. As discussed above, under no circumstances will you get the premium back. It doesn't matter if the charges against the defendant are dismissed the next day or the defendant shows up to every appearance as required—the premium is nonrefundable.

You’ll also need to provide collateral. 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. If the defendant fails to appear when required, the bail bond company loses the full amount of the bail. And it will go after the secured party and their collateral to get back the money it paid to the court.

Deposit Bonds or Court Bonds

A few states prohibit commercial bond companies. The court or a nonprofit organization, instead, offers bail bonds without taking a profit. The process might be similar to a commercial bail bond—paying a premium and putting up collateral. However, unlike private bond companies, the court won’t keep the full amount of the premium once the defendant has made all their court appearances. Usually, the court keeps only an administrative fee of 2% to 3%.

What Happens If a Defendant Fails to Show Up in Court?

A defendant who fails to show up in court can face a number of consequences, including:

• arrest (court orders a bench warrant)
• loss of the bail or bond amount
• loss of the collateral
• separate charges for bail jumping, and
• possibly, a bounty hunter after them.

And once the defendant is found, the court will likely revoke release and the defendant must wait out the proceedings behind bars.

Do You Need an Attorney to Bail Out of Jail?

You don’t need an attorney to bail out yourself or a friend. But having or requesting an attorney has its advantages. An attorney might be able to argue for reduced or no bail or get charges reduced (resulting in lower bail). If you can afford an attorney, it’s best to contact one right away. Along with bail issues, the attorney can advise you on what to do, what not to do, and what not to say.

If a defendant can't afford an attorney, the court will appoint one. All defendants charged with a crime that results in a prison or jail term are entitled to counsel. However, the court might not appoint counsel until the defendant’s first appearance, which means the defendant could sit in jail longer. The defendant will need to weigh the benefits of possibly getting reduced or no bail against the disadvantages of spending more time in jail.