It's the middle of the night and you get a call from a friend or loved one who has been arrested. They're upset and want you to bail them out right away. How do you post bail for someone? What information do you need?
This article will review some of the basics of bail and bail bonds, as well as how the bail and release processes work.
The key to getting someone out of jail usually involves paying bail. But first, a few things must happen.
Before posting bail and being released, a defendant must complete the booking process—a bureaucratic and, often, 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.
The process and timeline from arrest to release may go as follows:
No, an attorney is not needed to post bail or to get a defendant out of jail. But having or requesting an attorney has its advantages. An attorney may 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.
Before you run to the jail or courthouse to bail out your family member or friend, find out how much the bail is set at and the options for paying it. Some jurisdictions only allow cash or money orders, but some now accept credit cards. If you have the funds, you can go to the jail or courthouse and post bail for the defendant. If you can't afford that much bail, you might need to contact a bail bond agency to learn your options for securing a bond. And then the bail bond company will arrange for the defendant's release. (This option, though, can come with hefty fees, as discussed below.) Let's review some of the basics.
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 in court. 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 (yours or the defendant's) can be forfeited and the defendant is subject to arrest, again.
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 the defendant or defense attorney might convince the judge at a hearing to reduce or waive the bail amount entirely (which can save a lot of money).
At a bail hearing or arraignment, a judge sets bail based on factors such as:
Yes, 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).
O.R. release doesn't cost anything but isn't a free pass; it still 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.
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.
A 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. 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 you and your collateral to get back the money it paid to the court.
When you post your own money or collateral for bail or a bail bond, you risk losing it. For bonds, you're out a bare minimum of the 10% premium no matter what happens.
If the defendant fails to show up for the scheduled trial date or hearing and bail is forfeited, whatever you paid (or "posted") becomes the property of the court. There are additional financial costs and risks if you use a bail bond service. The bond company will have to pay the court if the defendant no shows, and the company will come after you and your collateral for reimbursement.
If the defendant shows up for every hearing on time, the court will typically return all bail paid in cash (sometimes minus a small fee). This is true even if the defendant is convicted. However, if you used a bond company, its 10% premium is nonrefundable.
It's also important to consider that, regardless of the outcome, your money or collateral could be tied up for weeks, months, or even years while the case moves through court.