Bail: Getting Out of Jail After an Arrest

Crucial info about trying to get out of custody.

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A person's first thought upon landing in jail is often how to get out—and fast. The usual way to do this is to post 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.

How Bail Is Set

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). (To read about real-life bail proceedings, see this blog post on the George Zimmerman case.)

Excessive?

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).))

Conditions of Bail

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. 

Paying Bail

Bail can take any of the following forms:

  • cash or check for the full amount of the bail
  • property worth the full amount of the bail
  • a bond (that is, a guaranteed payment of the full bail amount), or
  • a waiver of payment on the condition that the defendant appear in court at the required time (commonly called release on one's "own recognizance").

A bond that costs 10% of the bail amount may 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 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.

Getting Out of Jail Free

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:

  • having family members (most likely parents, a spouse, or children) living in the community
  • having resided in the community for many years
  • being employed
  • having little or no past criminal record, or only criminal problems that were minor and occurred many years earlier, and
  • having been charged with previous crimes and having always appeared as required.

These kinds of factors may be relevant not only to O.R., but also to bail. (See How Judges Set Bail.)

Get Help

If you're trying to get out of jail or have questions about bail/O.R. issues, 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 he or she can fully advise you of the applicable law in your state. For a lawyer, you can turn to Nolo's trusted Lawyer Directory, which has criminal defense attorneys in your area.

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