If you get arrested for committing a crime, you’re innocent until proven guilty—right? Well, it might not feel that way if you’re sitting in jail. To be convicted of a crime, the prosecution has to prove the offense beyond a reasonable doubt. But the criminal justice system moves slowly—it can take quite a while to resolve a case. If you want to get out of jail in the meantime, you’ll typically need to post bail or convince a judge to cut you loose without bail.
The presumption of innocence is important. But the government also wants to make sure people who are charged with crimes come to court. The main purpose of bail is to ensure defendants don’t take off after getting out of jail.
So, how does it work? Basically, the defendant gives the court bail—money or an interest in real property—in exchange for release from jail. The court keeps the bail for the duration of the defendant’s case. If the defendant goes to all the court dates and abides by the conditions of release, the court refunds the bail when the case is over. If, on the other hand, the defendant skips out on court dates, violates release conditions, or disappears altogether, bail can be revoked and forfeited.
How Is the Bail Amount Set?
Bail amounts are supposed to be related to the goal of getting the defendant to come to court. Bail needs to be high enough to achieve this purpose, but isn’t supposed to be excessively high. (U.S. Const., 8th Amend.; U.S. v. Salerno, 481 U.S. 739 (1987).)
Lots of jurisdictions use “bail schedules.” A bail schedule is a list of bail amounts that correspond to different crimes. For example, a schedule bail for a minor crime like petty theft might be $10,000. But for a more serious crime like manslaughter, the schedule bail is likely to be in the ballpark of $100,000.
If you want to get out jail quick—without waiting to see a judge—you’ll probably have to pay the schedule bail amount. Jails officials typically don’t have the authority to deviate from the amounts listed in the bail schedule.
Judges, on the other hand, are normally free to set bail at any amount they deem appropriate. A judge can even decide to let someone out of jail without requiring any bail—called release on one’s “own recognizance,” or “OR.” And in appropriate circumstances, a judge can deny bail altogether.
To address bail, a judge will typically hold a “bail hearing” in court. Judges often look to the bail schedule as a starting point for setting bail. Judges are also supposed to look to the circumstance of the case before making the final call. Judges ordinarily consider factors like:
- the seriousness of the arrest offense
- the defendant’s criminal record
- likelihood that the defendant will flee before trial
- the defendant’s financial resources, and
- how much of a threat the defendant poses to others if released.
Most of the factors aren’t related to the offense the defendant is charged with. So, it's not uncommon for two people charged with the same crime to pay different bail amounts.
What Are Your Options for “Posting” Bail?
Once bail is set, the next step is getting it “posted.” Acceptable methods for posting bail vary by jurisdiction. But a person can generally post bail by:
- paying the entire bail amount to the court
- giving the court a security interest in real property, or
- contracting with a bail bondsman to post bail for you.
The advantage of posting bail yourself—with cash or property—is that you can get a complete refund at the end of your case. Bail bondsmen usually charge a 10% fee. So if your bail is $10,000, you’ll likely pay a $1,000 nonrefundable fee to the bondsman. But for someone who doesn’t have lots of resources, a bail bondsman might be the only option—it’s either that or stay in jail.
Questions for an Attorney
- If I contract with a bondsman but don’t go to court, will a bounty hunter come after me?
- Are there any costs associated with posting bail with real property?
- To use property as bail, how much does it need to be worth?
- Do all bail bondsmen charge the same amount?
- Will I forfeit my bail if I accidently miss a court date?