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When someone’s?arrested and charged with a crime, there’s usually a lag – often months, sometimes longer – before his?case goes to trial. Not everyone arrested has to sit in jail until it’s time for trial, though.
In many cases, there’s a process?allowing ?the person arrested (the accused)?to be released from jail in exchange for money (called bail),?a pledge of property, or a personal promise to return to court for all necessary hearings. If the accused?makes all scheduled court hearings, bail is?refunded to him?when the trial’s over. He gets a refund whether he’s found innocent or guilty.
If he?misses a court date, however,?the bail?or property may be forfeited – the court keeps it. In most cases, warrant is issued for his?arrest.
Bail is usually set at an amount that presumably is large enough to convince?the accused to return to the court. The specific amount of bail varies?depending on where the trial takes place (the jurisdiction) and the judge. It’s also influenced by a number of factors such as the:
- Seriousness of the crime
- Accused’s criminal record
- Likelihood?the accused will leave or flee the area to avoid trial
- Accused’s financial resources
So,?it’s not uncommon for?two people charged with the same crime to pay different bail amounts.
Generally, someone may be held in jail without bail if:
- The judge thinks he’s?a danger to the community
- There’s?a chance he?might flee to avoid trial
- He’s charged with a serious or violent crime
- He’s charged with a crime?punishable by life in prison or death
- He’s charged with certain?drug-related crimes?and faces?more than 10 years in prison if found guilty
- There’s?reason to believe the accused might attempt to obstruct justice (hide or destroy evidence, for instance), or tamper with witnesses
- He’s a?repeat felony offender
As a practical matter, a judge may also set an extraordinarily high bail – one?most people can’t?afford – as a way of keeping someone in jail until it’s time for trial.
Release on One’s Own Recognizance
In some cases, especially for?minor crimes, a judge?may agree to release the accused without requiring the?payment of money or posting of personal property. This is called?being released on one’s own recognizance, also known as?R.O.R. or O.R. It means the judge thinks the accused has a good reputation and can be trusted to return to court for trial?without?the financial “motivation” of bail.
Before agreeing to R.O.R.,?a judge usually looks at a?number of factors, such as:
- The severity of the crime
- The accused’s?ties to the community, such as family or a job
- The accused’s?personal reputation
- Whether the accused can?afford bail
- Whether it’s beneficial for the accused?to return to his?family, friends and job
Many people can’t?afford bail, or don’t have easy access to large sums of money. In these cases, people often turn to a bail bondsman.?A bail bond is a?contract between three parties:
- The surety – the bail bondsman
- The?obligee, that’s the court, and
- The principal – the accused
With a bail bond,?the?bondsman promises?to pay the full bail amount to the court if the accused doesn’t live up to the terms of release, like show up in court for a hearing or the trial.
There’s also a separate contract?between the?bondsman and the indemnitor. She’s the accused’s?friend or?family member who promises to pay the bond if the accused doesn’t do what he’s supposed to and the bondsman has to pay the court. Also, she’s usually responsible for paying any costs the bondsman may have if he has to track down the accused and bring him to court.
In exchange for posting a bond, the bail bondsman charges a non-refundable fee. Usually it’s 10 percent of the amount of bail.? By using a bondsman, the accused gets out of jail for much less than the full bail amount – the 10 percent fee. But, the downside is?the fee is non-refundable.
Before agreeing to be an indemnitor on a bail bond for a friend or family member, make sure?you?carefully read the contract and understand what you’re agreeing to.?It’s your legal responsibility to make sure the accused shows up in court. And, it’s your job?to help the?bondsman find the accused if he doesn’t show up.?
If you believe that the accused is irresponsible and may miss court dates or?flee the area, don’t sign the bail bond contract.
In a few states, such as Illinois and?Kentucky, there are no bail bondsmen. In these states, an?accused?usually is?allowed to pay?10 percent of the cost of bail directly to the court. This bond, called surety on the bond,?is typically refunded by the court if the accused makes?all of his?court appearances.
Note: See a handy chart showing some bail and bond basics on Page 2
Questions for Your Attorney
- I got a bail bond for friend and I think he’s planning on leaving town. What should I do?
- Can I use my home as collateral for bail bond without my spouse’s permission?
- At first a judge agreed to R.O.R in my case but later said I had to pay bail? Can she do that?