Criminal Law

Posting Bail: What Are Your Options?

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.

Bail Basics

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.

How Much?

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.

The Eighth Amendment to the US Constitution bars excessive bail and fines. Over the years, lawmakers and courts have come up with rules about bail, who may get it, and how much may be required.

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

Bail Bondsman

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.

Not Available

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?

What is Paid to the Court? Who Makes the Payment? What Happens if All Court Appearances are Made? What Happens if the Accused
Fails to Appear in Court?
Entire amount of bail is paid to the court. The accused, the accused's family and/or the accused's friends. Court refunds entire bail payment. Accused forfeits bail, a warrant may be issued for the accused's arrest.
Bail Bond
(also known as Surety Bonds)
Typically 10 percent fee is paid to bail bondsman who, in turn, pledges money to the court and agrees to be responsible for the debt. In the case of accused of federal offenses, the fee may be as high as 15 percent. A commercial bail bondsman, who is in the business of posting bond for a fee. The accused, the accused's family and/or friends will pay the bondsman's fee. No money is refunded. The initial payment is a fee to the bail bondsman. Bondsman may hire bounty hunter to locate the accused and bring him to court. The bondsman can sue the accused to recover any money that may have been forfeited to the court.
Release on One's Own Recognizance
No upfront monetary payment, but accused promises to attend future court proceedings, and promises that he or she won't engage in illegal activity, or other activities as determined by the court. No one. No money to refund. The accused owes the entire amount set as bail. A warrant may be issued for the accused's arrest.
Surety on
the Bond
10 percent of the total bail is paid directly to the court. (Surety on the bond is often used in jurisdictions that prohibit bail bondsmen.) The accused, the accused's family and/or the accused's friends. Court returns the 10 percent payment. Initial payment is forfeited. Warrant may be issued for the accused's arrest.
A piece of property, typically worth 150 to 200 percent of the bail, is posted to guarantee the accused will return to court. The accused, the accused's family and/or the accused's friends will be responsible for paying the fees associated with a property bond. The accused, the accused's family and/or friends are released from the obligations of the property bond. The associated fees are non-refundable. The court may force the sale of the pledged property to satisfy the requirement of the bail. A warrant may be issued for the accused's arrest.

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