Is it ever wise to just stay in jail and wait for trial?

By , Attorney · Santa Clara University School of Law


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.

Jails Are Not Nice Places

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.

Jails Offer the Opportunity to Make Unfortunate Statements

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.

The Case May Get Stale While You're Out

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."

Bailed Defendants Have a Chance to Clean Up Their Act

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.

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