Judges must make decisions about whether to release defendants and under what terms. A judge can consider a report prepared by a bail investigator or similar government employee who has looked into the defendant’s standing in the community. The judge can listen to what people have to say about the defendant. And, of course, the court will look at the current charges and the defendant's rap sheet (criminal history record). But some would argue that—even with all this information—decisions about pretrial release are fundamentally subjective.
That’s where bail algorithms—formulas that use statistics in order to assess risk—come into play. Here’s the basic idea: The algorithm takes selected information about the defendant and produces an objective, scientifically based assessment. Before making a bail decision, the judge gets to consider the algorithm’s result.
A bail algorithm will typically consider several factors, then produce some kind of score or recommendation for or against release. One bail tool, for example, gives separate scores for risk of breaking the law and risk of failing to appear in court. It also highlights heightened chances for violence.
The relevant factors in bail algorithms tend to include the defendant’s:
Bail algorithms are a response to perceptions of arbitrariness and unfairness in decisions about pretrial release. Critics of traditional forms of evaluating bail have alleged unnecessarily overcrowded jails and disproportionate outcomes for poor people and minorities.
Bail algorithms have been criticized for the factors they don’t consider—some don’t weigh employment status or substance abuse history. The counter is that the data shows that drug abuse, for instance, isn’t nearly the indicator of risk that people have long thought it is.
Another criticism is that algorithms can focus on the label attached to the charged offense rather than the underlying facts. Some would argue, for instance, that a man who shoplifted and knocked down security guards while trying to run away isn’t your conventional “robbery” defendant.
A core contention is whether bail algorithms are susceptible to racial bias. Some say the math is colorblind. Others argue that racial inequality in arrest patterns means that bail algorithms, which weigh criminal history, discriminate by race.
Despite the controversy, plenty have embraced the concept of data-driven decisions about pretrial release. And many in the criminal justice system have said they want to reform bail algorithm systems to make them better—and more prevalent.
For more information, see How Judges Set Bail
]]>Bail is cash, a bond, or property that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant doesn't show up, the court may keep the bail and issue a warrant for the defendant's arrest.
Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting for a day or longer to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can often get out of jail quickly by paying the amount set forth in the stationhouse bail schedule.
If a suspect wants to post bail but can't afford the amount required by the bail schedule, the suspect can ask a judge to lower it. Depending on the state's procedures, a request for lowered bail may be made either in a special bail hearing or when the suspect appears in court for the first time (usually called the arraignment).
The Eighth Amendment to the U.S. Constitution requires that bail not be excessive. This means that bail should not be used primarily to raise money for the government; it's also not to be used to punish a person for being suspected of committing a crime. Remember: The primary purpose of bail is to allow the arrested person to remain free until convicted of a crime and at the same time ensure his or her return to court. (For information on what happens if the defendant doesn't show up, see Bail Jumping.)
So much for theory. In fact, many judges set an impossibly high bail in particular types of cases, knowing that the high bail will effectively keep the suspect in jail until the case is over. (The U.S. Supreme Court has indicated that pretrial detention on the basis of dangerousness is not per se unconstitutional. (United States v. Salerno, 481 U.S. 739 (1987).))
Bailed-out suspects commonly must comply with "conditions of release." If a suspect violates a condition, a judge may revoke bail and order the suspect re-arrested and returned to jail. Some bail conditions, such as a requirement that a suspect "obey all laws," are common. Other conditions may reflect the crime for which a suspect was arrested. For example, a condition may order a domestic violence suspect not to contact the alleged victim.
Bail can take any of the following forms:
A bond that costs 10% of the bail amount might sound like a good deal compared to posting cash bail, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. In contrast, a bond seller's fee (that 10%) is nonrefundable. In addition, the bond seller may require "collateral." This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.
Sometimes people are released "on their own recognizance," or "O.R." A defendant released on O.R. must simply sign a promise to show up in court and is not required to post bail.
A defendant commonly requests release on his or her own recognizance at the first court appearance. If the judge denies the request, the defendant then asks for low bail.
In general, defendants who are released on O.R. have strong ties to the community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include:
These kinds of factors may be relevant not only to O.R. but also to bail. (See How Judges Set Bail.)
If you're trying to get out of jail or have questions about bail or O.R. release, enlist the help of an experienced criminal defense lawyer who's familiar with the local system. (You should always seek advice and representation from a lawyer when facing criminal charges.) A knowledgeable lawyer may be able to help arrange your release and can fully advise you of the applicable law in your state. For a lawyer, you can turn to Nolo's Lawyer Directory, which has criminal defense attorneys in your area.
]]>What is a bench warrant? Is there a difference between a bench warrant and a regular arrest warrant?
Here's a mnemonic device to start you off: A "bench warrant" usually means someone didn't have their backside on the bench when they should have. That's the bench in front of the judge, not the park bench where pigeons can be fed.
Speaking more technically, a bench warrant is issued by a judge when a defendant violates the rules of the court. Most often, the defendant has simply failed to show up. Once a bench warrant is issued, however, the police can treat it like any other arrest warrant—and use it to bring the defendant back in front of the judge. (For more on failing to appear in court, see Bail Jumping—or Failing to Appear After Bailing Out.)
By contrast, a police officer initiates the arrest warrant process, by filing a statement with the judge that explains why the officer believes that the person named has committed a crime (in legalese, the officer is showing "probable cause" to arrest the person). If convinced, the judge signs the warrant, and the police can make the arrest. This process doesn't police officers to run to court for arrest warrants for every purse-snatcher they see. Many jurisdictions allow officers to call the on-duty judge to request a warrant, and many arrests do not require a warrant at all.
The most typical use of an arrest warrant is when an officer wants to arrest someone in their home. Simply busting down the suspect's front door in such a non-emergency situation would be neither polite nor legal.
If the suspect—or, more likely, a friend or family member—can afford bail and posts it, temporary freedom awaits. But bail can be tremendously expensive, even through a bondsman. That’s why many defendants ask the court to either lower bail or grant own-recognizance (OR) release.
Depending on the case and jurisdiction, a defendant may have a chance for a judge to change the predetermined bail amount at the initial appearance and at a later bail hearing held pursuant to a motion. The first time a judge takes up the issue of bail is often informal: Discussing the relevant bail factors, the prosecution and defense each make a quick pitch for increasing bail or keeping it as is on the one hand, and lowering it or granting OR release on the other.
Bail Reform
In recent years, courts have started using math to inform decisions about pretrial release. In these jurisdictions, select information about the defendant is entered into a program and a score or recommendation comes out. These bail algorithms, which consider factors like age and criminal history, are supposed to assess the risk that the defendant will commit another crime or fail to appear in court.
Some states are doing more than refining their cash bail systems—they're eliminating or seriously restricting them. States like New Jersey, which all but eradicated its conventional bail system in 2017, are instead focusing on risk assessment when making decisions about whether defendants should be in custody while charges are pending. In 2018, California enacted a law that appeared to eradicate the cash bail system, but voters later rejected the law after it was placed on the ballot in the November 2020 election. (Cal. Prop. 25 (2020).)
Specially designated bail hearings also tend to be relatively informal. But consideration of "ex parte" evidence—evidence from only one side without the other present—is generally improper. The judge will consider arguments from each side and may even choose to hear witness testimony.
Regardless of the format, the bail hearing affords a defendant an opportunity to hear and respond to the government’s presentation at a hearing that is open to the public.
The issue at a bail hearing isn’t the defendant’s guilt or innocence, but rather the likelihood that he or she will behave properly and return to court as necessary if released. Generally, the court may consider the apparent weight of the evidence against the accused. But this isn’t the primary consideration, and the judge isn’t normally supposed to make findings about the facts underlying the case.
If you have or someone you know has been arrested and is awaiting bail, consult an experienced criminal defense attorney. That lawyer will know the workings of the local bail system, both in and out of court.
And having a lawyer argue the issue of bail is a much better option than the defendant doing so. The lawyer can also arrange for the appropriate friends, family members, and associates to come to court. For example, a lawyer might arrange with a roommate to show up and attest that the suspect has a place to stay upon release.
]]>The prosecution must bring a motion to initiate a detention hearing. These hearings—typically held at the first court appearance—are reserved for certain kinds of cases, including:
A detention hearing is also required if there is a serious risk that the accused will flee or interfere with the judicial process in any way, including by intimidating witnesses or jurors. (Id.)
The defendant has a right to an attorney at a detention hearing. The defense is entitled to cross-examine witnesses and present evidence.
In deciding whether bail is appropriate, the court considers whether there are any conditions (such as a particular bail amount or monitoring by the government) that will ensure that the defendant, if released from custody, will show up for court in the future. The judge will also consider whether the defendant’s release will compromise the safety of any particular people or the community at large.
If you face a bail or detention hearing, seek the help of an experienced criminal defense attorney. Only such a lawyer can adequately represent you at this stage and throughout the proceedings.
]]>(For related information, see Can you appeal a judge's bail order?)
Defendants do not need a lawyer to to arrange for bail. They can either post cash bail personally, or phone a bail bond seller and arrange for a bond. Relatives or friends can come to a jail or court and post cash bail for an arrested person or purchase a bond from a bail bond seller.
In addition to the seriousness of the charged crime, the amount of bail usually depends on factors such as a defendant’s past criminal record, whether a defendant is employed, and whether a defendant has close ties to relatives and the community.
SETTING BAIL BY ALGORITHM
In recent years, courts have started using math to inform decisions about pretrial release. In these jurisdictions, select information about the defendant is entered into a program and a score or recommendation comes out. These bail algorithms, which consider factors like age and criminal history, are supposed to assess the risk that the defendant will commit another crime or fail to appear in court.
For more on the topic, see Algorithms to Set Bail.
Judges may legally deny bail altogether in some circumstances. For example, if another jurisdiction has placed a warrant (hold) on a defendant, a judge is likely to keep the defendant in custody at least long enough for the other jurisdiction to pursue its charge. And bail may be denied to a defendant who is likely to flee the jurisdiction before the case concludes.
Example: Rosie Olla is arrested and charged with managing a large prostitution ring. Rosie is a naturalized American citizen born in Spain, and her family still lives in Barcelona. While searching Rosie after her arrest, the police found that she was carrying a passport and $5,000 in cash. Under these circumstances, a judge will probably be very reluctant to set bail for Rosie. Her family background and the fact that she was carrying a passport and a large amount of cash suggest that Rosie may flee to Spain if she is released on bail. Unless Rosie can explain to the judge why she was carrying the passport and cash, and can also demonstrate strong ties to the local community, a judge is likely to deny her request for bail.
In many areas of the country, defendants can post bail with the police even before they are brought to court for a bail hearing or an arraignment. Many jails have posted bail schedules, which specify bail amounts for common crimes. An arrested defendant can obtain release immediately after booking by paying the amount of bail set forth in the jailhouse bail schedule. Bail schedules can vary considerably according to locality, type of crime, and residency.
As a general rule, bail for offenses classified as felonies is five to ten times the bail required for misdemeanors. The more serious and dangerous the crime, the higher the amount of bail is likely to be. As a general rule, a jailhouse bail schedule is inflexible. The police will not accept bail other than as set forth in a schedule; suspects wanting to pay less must go before a judge.
As an alternative or in addition to jailhouse bail schedules, some areas have duty judges. A duty judge is available to fix bail over the phone, without the necessity for a formal court hearing. Like a jailhouse bail schedule, using a duty judge is an option for arrested persons who are anxious to bail out of jail before going to court.
Unfortunately for many suspects who want to bail out of jail quickly, the police tend to arrest suspects for the most serious criminal charge that can possibly be supported by the facts at their disposal. For instance, the police may treat possession of a small amount of marijuana (a misdemeanor in most states) as an arrest for possession of marijuana with intent to sell (a felony in all states). Even though such a charge will almost certainly be reduced to a misdemeanor later in the case, it is a felony for the purposes of the bail schedule, and bail will be set accordingly.
]]>(For related information, see Can you appeal a judge's bail order?)
Despite the principles explained above, many judges set unaffordably high bail in some types of cases to keep suspected offenders in jail pending trial. Judges can lose elections when defendants they’ve released on bail commit new crimes, but rarely take political heat for keeping a suspect behind bars. High bail is particularly likely when a defendant poses a danger to the community or has committed an offense against a child. A judge may also set higher bail if a defendant is likely to flee the jurisdiction before trial or has a prior criminal record. Although some legal commentators argue that preventive detention—keeping a defendant in jail out of fear that the defendant is dangerous—violates the Eighth Amendment, the U.S. Supreme Court upheld the practice in U.S. v. Salerno, 481 U.S. 739 (1987).
SETTING BAIL BY ALGORITHM
In recent years, courts have started using math to inform decisions about pretrial release. In these jurisdictions, select information about the defendant is entered into a program and a score or recommendation comes out. These bail algorithms, which consider factors like age and criminal history, are supposed to assess the risk that the defendant will commit another crime or fail to appear in court.
For more on the topic, see Algorithms to Set Bail.
Because of terrorism concerns, foreign nationals may face special obstacles in the bail-setting process. Arrested foreign nationals may need to contact a lawyer with experience in both criminal law and immigration issues, and may also want to contact their country’s consulate.
Example: Rex Kars is charged with felony hit-and-run driving. At a bail setting hearing, the judge sets bail at $5,000. Kars argues that the bail is excessive, as he cannot afford to post that amount in cash nor does he have sufficient collateral to purchase a bail bond. However, while a judge can consider Kars’s personal history and financial ability when setting bail, the fact that Kars cannot afford to pay the bail that is set does not make it excessive.
Example: Holly Woode is arrested for stealing two blouses from a clothing store (petty theft). During a bail hearing, the judge tells Holly, “In my opinion, once a petty thief always a petty thief. If I let you out on bail, you’ll probably just go on stealing.” With that, the judge denies bail to Holly. (Alternatively, the judge sets bail so high that Holly clearly has no way of paying it.) The judge’s decision is arbitrary and invalid. The crime that Holly is accused of committing is not one of violence, so preventive detention is unnecessary. Moreover, the judge’s comments are based only on the judge’s predisposition, not on information about Holly. Holly can file a petition for habeas corpus asking another judge to set reasonable bail.
]]>This article discusses in general terms how judges decide the amount of bail and how to try getting lowered. For information on bail generally, see our article Bail: Getting Out of Jail After an Arrest.
The law and procedures for getting pretrial release vary from state to state. Often, when someone is arrested, they can bail out fairly quickly by paying the amount that’s listed on the jailhouse bail schedule, which sets the initial bail amount for common crimes.
But often, people can’t afford that amount. In that situation, they can ask a judge to lower it at arraignment or at a separate bail reduction hearing. Assuming the judge doesn’t order the defendant released on “O.R.” (best case scenario), the judge will need to decide how much bail should be.
When setting the amount of bail, most judges are concerned with two main things. First and foremost, judges want to make sure that defendants aren’t a “flight risk,” meaning they won’t skip town or otherwise fail to appear at future court dates. When defendants fail to appear without a good excuse, they can forfeit (never get back) any cash bail they paid, or could lose the collateral they put up to secure a bail bond. Theoretically, the higher the bail, the more defendants have to lose, so they're more likely to show up for court.
Judges are also concerned about whether the defendant will be a danger to the community if released. The U.S. Supreme Court has suggested (but hasn’t definitely ruled) that judges can consider dangerousness in setting the bail amount unless the prosecutor’s only reason for seeking high bail is to secure the defendant’s presence in court. (United States v. Salerno, 481 U.S. 739, 745 (1987).)
But in some states, the judge isn’t allowed to consider dangerousness when setting bail; if the defendant is potentially dangerous, that factor can be considered when setting conditions of release (such as issuing restraining orders and requiring electronic monitoring), but it’s not relevant to how much the defendant should pay. (State v. Whitaker (N.M. 2018) 410 P.3d 201, 219.) Courts in these states (and many others) can deny bail altogether based on dangerousness, by issuing a detention order. But that kind of order usually requires a special hearing where the prosecutor must prove the defendant's risk by "clear and convincing" evidence.
In reality, when judges do set bail, future dangerousness plays a part in many if not most decisions about how high bail should be. Even in states where courts aren't supposed to consider it, a defendant's potential risk to others (if any) will probably be on the judge's mind as they decide the bail amount.
Although the law varies from state to state, here are some of the factors judges often consider when setting the amount of bail or a bond:
(For more on how initial bail is set, see How Judges Set Bail and Algorithms to Set Bail.)
Someone who can’t afford bail might have an argument that the bail is excessive. The Eighth Amendment to the U.S. Constitution states that "excessive bail" can’t be imposed. Although the phrase "excessive bail" isn’t defined in the Constitution, the U.S. Supreme Court has interpreted it to mean that the amount of bail can’t be used as a ploy to keep a defendant in jail before trial. But the Court has also ruled that the ban on excessive bail doesn’t create a right to bail, and that a judge can refuse bail when it's justified. (U.S. v. Salerno, 481 U.S. 739 (1987).)
Over the years, many states have made efforts at bail reform, so that fewer people will be incarcerated just because they can’t afford bail. And as noted above, the California Supreme Court has ruled that when judges do set bail, it should be an amount the defendant can afford. Whether these developments will put an end to unaffordable bail remains to be seen, because many judges are slow to embrace the changes.
Another possible strategy when bail is unaffordable is to take another shot at a reduction. Judges can always reconsider bail, and might lower it when they receive information—ideally from an attorney—that they didn’t know about before. For example, imagine an initial bail hearing where the defendant told the judge he probably didn’t have a job anymore because of his arrest. The judge then denied bail in part because the defendant had insufficient ties to the community. If the defendant later learns that his boss is holding his job open for him, he could ask the court to reconsider bail based on new evidence of his ties to the community.
It’s important to have legal representation at a bail hearing. Experienced, local criminal defense attorneys usually know the factors that particular judges find important at a bail reduction hearing. They often discuss the case with the prosecutor at some point before the hearing, and sometimes can assure the judge that the charges aren’t as serious as they look on paper. And whether it’s fair or not, judges often take attorneys’ arguments more seriously than people who represent themselves. This is in part because attorneys are considered “officers of the court,” which means they can get in trouble if they misrepresent anything when making arguments to the judge.
]]>Bail is cash or its equivalent (such as a bail bond) that a court accepts in exchange for allowing a defendant to remain at liberty until the conclusion of the case. Bail creates a financial incentive for defendants to make all required court appearances. Should a defendant fail to appear in court, the bail is forfeited (that is, the court keeps the cash or collects on the bond) and the judge issues an arrest warrant.
For some offenses, a person can pay a set amount (from a "bail schedule") and gain their freedom shortly after an arrest. Other times, the judge must set the bail amount and conditions of release, which requires a hearing. A defendant might also opt to wait for a bail hearing to argue for a reduced bail amount.
Bail is usually posted in one of the following ways.
Cash bail requires payment of the full amount of bail. While not a viable option for many people, this form of bail will be fully refunded if the person shows up in court as ordered. (Sometimes, the court will take a small administrative fee.) If the defendant is convicted and ordered to pay fines and fees, the court may deduct these payments before returning the remainder of the bail money.
Surety bonds involve purchasing a bond from a bail bond seller, who typically charges a nonrefundable premium of 10% of the amount of bail. To purchase a bond, the person pays the 10% upfront (which won’t be refunded) and puts up some form of collateral (such as a vehicle title, valuable personal property, or a land deed). For example, if the police or a court sets bail at $10,000, a defendant can usually purchase a bail bond by paying $1,000 and putting up collateral valued at $10,000.
If the defendant fails to appear in court, the bail bond seller must pay the court the full bail amount. Bail bond agents don’t like when this happens. They will search for the person to bring them in (sometimes using bounty hunters). If the bail company is out any money, they can go after the signer, co-signer, or collateral.
In some jurisdictions, courts finance bail bonds. They might have the same requirements a bail bond company has—paying a 10% fee upfront and posting collateral. The advantage of court-financed bonds is that the 10% fee (minus a small administrative fee) will be returned if the arrested person makes all of their court appearances.
A person who owns valuable property may be allowed to post bail through a property bond. The value of the property must be worth at least the full amount of the bail, although some places require the value to exceed the bail amount by a certain percentage (say 10 or 25%).
For example, if the police or court set bail at $1,000, and a suspect owns a fancy watch worth $1,300, the defendant may be able to use the watch to post bail. Courts will usually specify what type of property may be used as collateral and the required documentation to file with the court, such as a house deed, vehicle title, and proof of liens.
Release on recognizance (ROR) or personal recognizance (PR) release allows a person to remain free in the community based on their promise to show up in court. While this type of release doesn’t require an upfront payment, the defendant must still sign an agreement (sometimes called a ROR or PR bond) to that effect. In some cases, the agreement imposes a financial penalty for nonappearance. So if the court agrees to a $500 ROR or PR bond, the $500 represents the penalty that the defendant must pay if they fail to appear.
Although not a true type of bond, you might come across the term “walk-thru” or “walk-through” bonds. A person who has an active warrant may be able to take care of their warrant by posting a walk-through bond and setting up a new court date at the same time. You’ll need to call the court, bonding office, or law enforcement agency to see if you’re eligible.
Now that you're aware of the different types of bail, how do you pay for them? You can always pay for bail in cash. Other forms of payment will depend on the jurisdiction or bond company used. To find acceptable forms of payment, talk to someone at the jail, bonding office, or bond company or check out their website.
Many places will allow the following forms of payment for bail or bonds:
Depending on the jurisdiction, some may accept payment by:
Pretty much anyone willing to put up (and risk their) cash or collateral can post bail or bond. The defendant can post their own bail or ask a family member or friend to post it. If the defendant uses a bond company, the company may require the defendant to have a co-signer (someone who will help the company find the defendant should they fail to appear).
In some areas of the country (not many though), nonprofit organizations may post bail on a defendant’s behalf and then assist them in making court dates (and may help in other ways too). Some examples of these nonprofit bail fund organizations include the Bail Project and LGBTQ Freedom Fund.
When someone is arrested and sitting in jail, there's usually a sense of urgency to get them out. But figuring out bail and bond options can be confusing (and costly). If you have an attorney, talk to your attorney about your options. Your attorney can explain options for bailing out and potentially argue for lower bail or ROR in a bail hearing. You can also try to find information on the website of the local court or a legal aid organization. Be wary of reassurances made by bail bond companies stating how they want to help you and make the process easier—their main objective is making money, and they make a lot of it at a significant cost to individuals. No matter what—take the time to carefully review any documents you're asked to sign and get an explanation of what's at stake before signing your name on the dotted line.
If you have additional questions on bail, check out Nolo's list of articles on Bailing Out of Jail. For questions on immigration bonds, check out this article.
]]>Not all states allow defendants to post bail after they’ve received a jail or prison sentence. In those that do, trial court judges often have a great deal of leeway in determining whether to set bail and how high to make it. If a trial court decides the issue using the factors specified by the law, the decision will probably stand. Federal law allows bail pending appeal for certain convictions if the judge is clearly convinced the defendant won't flee or harm someone and the appeal has a good chance of being successful. (18 U.S.C. § 3143.)
Many states and the federal government don’t allow bail if the conviction was for a serious or violent crime, such as rape or murder, or when the defendant received a lengthy sentence. For instance, a federal court decided that a defendant’s sentence of 14 years and 7 months made him a high risk to leave the state; he was therefore properly denied post-conviction bail. (Sims v. Wainwright, 307 F. Supp. 116 (S.D. Fla. 1969).) The reasoning for prohibiting bail in similar scenarios is straightforward: Defendants convicted of serious crimes or facing long prison terms are more likely to skip town to avoid what’s awaiting them.
On the other hand, if the conviction is for a relatively minor crime or the sentence is short, trial courts are more likely to allow bail. Many jurisdictions have determined that bail should be available if a defendant’s jail sentence is shorter than the amount of time it will likely take to resolve the appeal (oftentimes a year or more). Otherwise, a defendant could win an appeal after having already served an entire jail or prison sentence.
Unlike in pretrial bail proceedings, no presumption of innocence exists after a conviction. As a result, when there's a question as to whether bail is appropriate, most states place the burden on the defendant to show that it is.
Courts use many of the same factors in post-conviction bail decisions as they do while the case is pending. These include:
A defendant who might pose a risk to the public will have a difficult time convincing a judge to allow bail pending appeal. This situation applies to a defendant whose criminal past demonstrates poor decision making or impulsive behavior that has endangered others. Judges also consider the likelihood of the defendant continuing to commit nonviolent crimes if granted release.
Courts additionally need to ensure the defendant won’t intimidate witnesses or tamper with evidence if freed on bail. Potential intimidation and tampering are important considerations because a defendant might receive a new trial after a successful appeal.
Lastly, trial courts can consider the merits of the appeal. If it appears the appeal is frivolous or simply intended to delay the proceedings, the court is less likely to allow bail.
If you have questions regarding possible release pending an appeal, talk to your criminal defense lawyer. You might want to consider speaking to a defense attorney who specializes in criminal appeals.
]]>States define the crime and penalties for bail jumping differently. It might even be called a different name, such as criminal failure to appear (FTA), release violation, or crime of nonappearance. Some states allow grace periods, while others don't offer such leniency.
Some states define bail jumping as a defendant failing to show up in court and then failing to surrender within a set time period. In these states, a defendant might have 48 hours, 30 days, or some other time period in which to surrender before criminal charges can be filed. Other states make failure to appear without good cause a crime and don’t allow a grace period. Certain states make bail jumping an offense only where the defendant faces felony charges for the pending case, while others provide that any kind of charge will suffice.
In most states, the prosecution must prove that the defendant intentionally, willfully, or knowingly failed to show up to court. It will usually suffice to show that the defendant knew about the court appearance and simply didn't appear—accident or no accident. If you didn't receive notice of the hearing, you might have a defense, but courts keep records of these notices. Depending on the jurisdiction, that notice can take various forms, including a letter mailed to the defendant and even the wording of the bail bond. Trying to convince the court the notice was lost in the mail won't typically work.
Many states tie the criminal penalties for bail jumping to the underlying charges. For instance, the law might impose a misdemeanor penalty when the underlying charges are misdemeanors and a felony penalty for underlying felony charges. Or a state might even set different degrees of bail jumping within the misdemeanor and felony categories. And some states use straight penalties, meaning all bail jumping offenses carry the same penalty.
On top of additional criminal charges, the judge may:
Having a record of failure to appear also looks very bad should you face criminal charges in the future.
Whether a defendant's excuse for not showing up to court (and potentially failing to surrender thereafter) constitutes a defense depends on the facts and the jurisdiction. It's often a valid defense that the defendant couldn't have avoided the failure to appear due to circumstances beyond his or her control. A court might consider a car accident or hospitalization as beyond someone's control. But courts have rejected excuses due to intoxication and drug use, and have been skeptical of poorly substantiated claims of illness. In some states, even the fact of being incarcerated in another jurisdiction isn't an excuse for failing to be in court when required. And if your car breaks down, you need to find a ride.
If you've been charged with bail jumping or missed your court date and don't know what to do, talk to a local criminal defense attorney. A knowledgeable lawyer will be able to advise you as to the applicable law, the local practices, and your best course of action, including whether surrendering to the court or the authorities may prevent a bail jumping charge.
]]>Bail bond agents—commonly known as bail bondsmen or bondspersons—charge defendants a nonrefundable fee in exchange for depositing a bond with the government for the full amount of bail. The bond amounts to a contract between the government and the person who posts it—in this instance, the bail bond agent. The government agrees to release the defendant from jail in exchange for a guarantee from the bond agent that the defendant will appear in court as the proceedings require. This guarantee is backed by the bond for the bail amount. If the defendant fails to return to court (jumps bail), the bondsperson must pay the full bail amount to the court.
Bail bond agents are effectively investing in their clients. For example, if a defendant’s bail is $10,000, the agent may charge the defendant a nonrefundable fee of $1,000 to post a bail bond in the amount of $10,000 with the court. If the defendant fails to appear in court, the bondsperson is potentially out $9,000 ($10,000 paid to the court minus the $1,000 received from the defendant). Criminal defendants can be risky investments, so most bonds agents will also require some type of collateral (like a car title or house title) from the defendant.
Because they stand to lose so much, bail bond agents typically have the authority under state law to authorize what amounts to the arrest of clients who skip bond. To avoid forfeiture of the bond to the state, the bond agent may hire a bounty hunter to find the fugitive and return him to the government within an amount of time that’s been set by statute. While the bond agent can use the collateral to pay the bail amount, it's often faster and cheaper to produce the defendant.
Bounty hunters are people who have the authority of bond agents to arrest delinquent clients and deliver them to the appropriate authorities. They are usually paid a percentage of the bond amount. But they get paid only if they apprehend and return the fugitives. It’s no surprise that they’re so motivated—and often effective—at getting defendants back to court.
The federal government has been reluctant to regulate bounty hunters. Moreover, many states don’t have laws specifically designed for them.
Those states that do regulate bounty hunting typically don’t have stringent requirements for becoming a bounty hunter. Typical prerequisites for a career in bounty hunting include:
Bounty hunters sometimes use excessive means to capture their targets. Reckless pursuits and apprehensions—including those involving excessive force—can cause considerable harm not only to fugitives but also to innocent bystanders.
Many people who have been victims of violence at the hands of bounty hunters have gone to court with mixed results. Bounty hunters and their employers can be held liable for the former’s misdeeds—their victims have, for example, successfully sued for false imprisonment and acts of violence. (See Mason v. City of New York, 949 F.Supp. 1068 (S.D.N.Y. 1996).) But victims haven’t had as much success when they’ve sued the government for the acts of bounty hunters. For instance, most federal appellate courts have determined that bounty hunters and bond agents don’t act on behalf of the state. (See Green v. Abony Bail Bond, 316 F.Supp.2d 1254 (M.D. Fla. 2004).)
Example: A bounty hunter in Texas was seeking to apprehend Ruth Garcia, who had skipped bail. He mistakenly identified Betty Cabellero as his target and proceeded to beat her severely. Caballero was pregnant and had a miscarriage. Caballero filed suit against the bond company under the Civil Rights Act of 1871. The court held that this law didn't apply because the bounty hunter and bond agent weren’t acting on behalf of the government. (Caballero v. Aamco Bail Bonding Co., 149 F.3d 1179 (5th Cir. 1998).)
If you've bailed out and missed your court date or are otherwise in trouble with the law, consult an experienced criminal defense attorney. If you feel you've been mistreated, you may want to contact a personal injury lawyer. A knowledgeable lawyer will be able to advise you of the applicable law and weigh your options.
]]>The police have a strong case against me and I’m probably going to do some jail time anyway. Why bother trying to get out on bail or OR?
If a person is convicted of a crime and given a jail sentence, the sentence will be reduced by the number of days that person was detained in jail prior to conviction. (This is called “credit for time served.”) Thus, a suspect who expects to receive a jail sentence may consider saving the cost of a bail bond and in effect begin serving the sentence prior to conviction.
From an economic standpoint, forgoing bail in such a situation may make sense. But in practice it’s usually to a suspect’s benefit to seek pretrial release. One obvious reason is that the suspect may be wrong about receiving a jail sentence upon conviction. Many jails are overcrowded, and people who in the past might have been incarcerated are now allowed to remain free even if they are convicted. Here are additional reasons why getting out is almost always the better option.
A second reason to bail out is that jail conditions are normally worse for inmates awaiting sentencing than they are for inmates who have already been sentenced. For example, people serving jail sentences have access to exercise facilities and the jail’s law library, and may be given work opportunities and other privileges. Prior to sentencing, these options may not be available.
Third, defendants who are released prior to trial run no danger of making statements to jailers or even other inmates that can be used against them if their cases ultimately go to trial.
Prosecutors usually move cases along more slowly when defendants are not in custody. As a result, witnesses can disappear and cases can get stale, so that bailed-out defendants often wind up with better deals. As defense attorneys like to say, “Justice delayed is justice.”
Finally, suspects who bail out have a chance to undertake constructive activities that may lead a prosecutor or a judge to dismiss or at least reduce the charges against them or lessen their punishment.
EXAMPLE: Harold is charged with shoplifting. Harold bails out of jail quickly, makes restitution (pays money back) to the store whose merchandise he attempted to steal, and begins a counseling program offered through a community mental health center. Weeks later, when Harold and his attorney meet with the prosecutor to see if the case can be settled without going to trial, Harold has a letter from the store owner forgiving him and a letter from the head of the counseling program praising Harold’s efforts. The prosecutor may be impressed enough with Harold’s self-help efforts to place Harold on informal probation and dismiss the shoplifting charge after six months if Harold completes (or remains in) the counseling program and has no further arrests during that period.