Steps to Take If You Cannot Afford to Make Bail in Your Case

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The Eighth Amendment to the United States Constitution prohibits the issuance of excessive bail. However, courts have found that excessive bail does not simply mean that the defendant cannot afford bail. When bail is too high, a defendant may not be able to pay it and may need to look into other arrangements.

The Problem with Expensive Bail

Bail is often established at an amount that makes it very difficult for people to pay. Over two thirds of people who are currently behind bars are not individuals who have been convicted of crimes. Instead, they are people who are waiting for trial. Bail may not have been ordered in some cases. However, in other situations these individuals simply cannot afford to make bail. This means that many innocent people are locked up for months or even years simply because of the inability to pay for bail.

What Bail Is

Bail is the amount of money that a criminal defendant pays to convince the court that he or she will return to trial. If the defendant does not appear as necessary, he or she may be imprisoned.

When Bail Is Paid

Bail is usually set at a defendantís first court appearance after he or she is arrested and brought up on charges. This may be at the arraignment or at a separate bail hearing.


Many courts order an amount of bail based on procedure. For example, they may order $1,000 for petty misdemeanors or $100,000 for serious felonies. However, judges do not have to adhere to such standards and may make bail higher or lower than the standard amount. In some cases, a judge may decide to release someone on their own recognizance. The amount of bail is often based on individual circumstances.

How Bail Is Set

The judge sets bail. He or she considers a number of factors. A primary consideration is the seriousness of the charges. Additionally, the judge tries to determine if the defendant is a flight risk based on whether or not he or she has a job, family or ties to the community. A judge may also consider the defendantís past criminal record including any instances of failing to appear to necessary court hearings.

There may be additional individual considerations, including the defendant having an outstanding warrant in another jurisdiction. The judge may keep such a defendant in custody instead of granting bail so that the other jurisdiction can complete extradition proceedings.

Options when Bail Is a Problem

If the defendant cannot pay the amount of bail ordered, there may be several options including:

Request Lower Bail Amount

A defendant may request a lower bail amount through his or her criminal defense lawyer. This may be successful if the ordered bail amount is excessive and may impose an economic hardship on the defendant. Such request may be made at an arraignment or bail hearing, depending on the procedures of the state and court. However, for this request to be fulfilled, the judge has to decide to do this at his or her discretion.

Use a Bail Bondsman

A bail bondsman may be able to help fill in the gap when bail is expensive. When a person uses a bail bondsman service, the bail bondman puts up the entire amount of bail on behalf of the defendant and charges the defendant a certain percentage of the total bond, commonly 10 percent of the bail amount. This ties the bail bondsman to the case because he or she will lose the money put up for the defendant if he or she fails to show up for court.

Putting Up Collateral

A defendant may be able to put up collateral to secure the cost of a bond, such as real estate, a valuable car or other property of value. When liquidating assets would be difficult or not sensible, placing the items as collateral can help secure the bail without having to actually sell the asset.


In some situations, the defendant may be able to be released on his or her own recognizance. Rather than putting up money for bail, the defendant simply promises to return to court. This option is only available when the accused is not a flight risk and usually only when a minor crime is involved. This may also be an available option when there is not enough space in jail to meet the capacity needs.

A criminal defense lawyer may be able to assist with the bail process.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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