How Bail Is Set

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In many cases, a criminal defendant can leave police custody by posting bail. The amount that bail is ordered at is different in each case depending on a number of factors.

Purpose of Bail

Bail is basically money that a criminal defendant deposits to the court in order to leave jail. The money is used to ensure that the defendant goes to his or her appointed court dates. If he or she fails to appear when ordered to do so, the defendant forfeits the money, and the court can arrest the him or her for failing to appear.

Involvement of Bail Bond Company

Rather than having the defendant pay in all of the money into the court, a bail bond company may be used. The defendant pays a non-refundable amount of the ordered bail. This is often ten percent of the total amount ordered. This amount is paid to the bail bond company which promises to pay the full amount of bail if the defendant does not appear. This amount varies by state law. Some policies may allow a lower amount to be paid in based on certain characteristics, such as if the defendant is a government employee or represented by legal counsel.

Refunded Bail

Rather than using a bail bond company, a person may deposit cash with the court which may be in the form of a cashierís check or personal check that clears. If the defendant pays in the full amount of bail, this amount is refunded to the defendant at the end of the case if he or she did not miss any court appearances. If any restitution or fines are ordered, these amounts may be taken out of the bail deposited. This can occur if the case is resolved through a plea bargain, through the defendant going into custody or certain other resolutions such as entering a drug diversion program or being ordered into a mental health institution.

Property Bonds

If the defendant does not use a bail bond company or does not pay the entire amount in cash, the defendant may secure a property bond. In this type of situation, the court gets a lien on the property that is used as collateral for the bond amount. If the defendant does not appear in court when he or she needs to, the court can seek to foreclose on the property in order to satisfy the lien.

Amount of Bail Ordered

There are a number of factors that affect how much bail is ordered. One important consideration is the severity of the crime. It is common for the prosecution to charge the highest crime possible at the early stages and then reduce these charges later on in the process. Even if the prosecution ultimately decides to charge a lesser crime, the bail is based on the charges filed at the time of the bail hearing. The court may also consider other enhancements to the crime, including using a firearm during the commission of the crime, having a prior criminal conviction within a certain number of years from the crime newly charged or having prior sex offenses when the crime charged is a sex crime.

Many counties have bail schedules that are used to help determine the appropriate amount of bail based on the type of offense. This schedule may include different amounts for misdemeanors and felonies, as well as for individual crimes. A judge may adjust the amount based on individual factors.

A judge will also consider the publicís safety if he or she releases the defendant. For this reason, a defendant facing serious crimes such as rape, murder or terrorism may not be released on bail due to the potential risk to the community. If the defendant has threatened the victim or a witness about testifying against him or her, the judge may order the defendant to be remanded into custody. A judge is also to assess the defendantís potential to become a flight risk. This is determined by looking at whether the defendant has a job, family and ties to the community. If the defendantís flight risk may be controlled through removing his or her passport or other actions, these actions may be conditions in setting the bail.

Illegal Bail Postings

If the defendant uses illegally-acquired asses including money to post bail, he or she may face additional criminal charges. This independent act is sometimes a felony. This belief is most likely to arise when the defendant pays the entire bail amount in cash.

Legal Assistance

A lawyer can provide representation to a criminal defendant who is wanting to post bail. He or she may argue on behalf of the client for a lowered bail amount or for a release on his or her own recognizance when factors weigh in the defendantís favor. A criminal defense lawyer can also provide information about the clientís rights.


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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