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.
In many cases, a process exists that allows the arrested person (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 attends all scheduled court appearances, his bail is refunded when the trial is completed. He is entitled to a refund whether he is found innocent or guilty.
If he fails to appear in court, the bail or property may be forfeited – the court keeps it. In most cases, a warrant for his arrest is issued.
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 believes he is a threat to the community.
- There’s a chance he’ll flee to avoid prosecution.
- He’s been charged with a serious or violent offense.
- He has been charged with a felony punishable by life in prison or death.
- He’s been charged with several drug-related offenses and faces more than ten years in prison if convicted.
- There is reason to believe the accused may attempt to obstruct justice (for example, by concealing or destroying evidence) or tamper with witnesses.
- He’s a felony repeat 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
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 a friend or family member of the accused who promises to pay the bond if the accused fails to do what he’s supposed to and the bondsman has to pay the court. In addition, she is usually liable for any costs incurred by the bondsman in tracking down the accused and bringing him to court.
The bail bondsman charges a non-refundable fee in exchange for posting a bond. Typically, it is 10% of the bail amount. Using a bondsman, the accused is released from jail for much less than the full bail amount – the 10% fee. The fee, on the other hand, is non-refundable.
Before agreeing to be an indemnitor on a bail bond for a friend or family member, read the contract thoroughly and understand what you’re agreeing to.
It is your legal responsibility to ensure that the accused appears in court. It’s also your responsibility to assist the bondsman in locating the accused if he fails to appear.
Do not sign the bail bond contract if you believe the accused is irresponsible and will miss court dates or flee the area.