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The Basics of Bail: Part 1

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The Basics of Bail: Part 1

The Basics of Bail

An initial hurdle to cross in criminal defense is how to obtain an accused person’s release from jail pending trial. The accused must “post bail.” The image from movies is a bail bondsman, with a neon-lighted office near the jail taking money from the accused’s family and warning the accused that Dog the Bounty Hunter will be looking for him if he “skips bail.”

The reality is different, and a bit more complicated.

First, what is the purpose of bail?

Simply, bail assures the accused’s appearance as required in court. There are three general types of bail: recognizance, “10%,” and surety.

Recognizance bail often referred to as release on your “own recognizance” or “O.R.” or “personal recognizance” or “P.R.” is where the accused promises to appear for court without giving any money to guarantee the appearance. The accused agrees to be liable for an amount of money if they fail to appear for court.

Recognizance bail is a real benefit to an accused who can be released from custody without depositing or posting money with the court clerk. However, there is a stiff penalty for failing to appear when you are released on recognizance: if the underlying charge is a felony, failure to appear on recognizance bond is a separate felony in itself! And this is a felony that is easy for the prosecutor to prove: the case was called for hearing and the accused was not there.

“10% bail” acknowledges that most bail bondsmen charge a 10% non-refundable premium to deposit bail for an accused. If the court allows, the accused may deposit 10% of the amount of bail directly with the clerk and, if bail is not violated or “forfeited” receive most of the money back at the end of the case.

The most well-known and, unfortunately, most common is surety bail by a jail bondsman. A surety bail is an insurance policy that assures appearance in court for an accused in an amount set by the court. I lieu of a surety bond, the accused may deposit the amount of the bond in cash or by pledging property, however, few people have the financial ability to post a cash or property bond. These options are referred to as “cash or surety bonds.”

If an accused fails to appear on a surety bond, the bondsman is given a period of time to produce the accused before the court or pay the amount of the bond to the court. This is where the “bounty hunters” come in. They are paid to arrest the accused so the bondsman does not have to pay the court the full amount of the bond.

The widespread use of surety bonds has a disproportionate impact on the poor. If the accused cannot afford the premium for a bond, he must sit in jail until trial while his richer co-defendant may be released pending trial.

Regardless of the type of bond, court’s may require that the accused comply with certain conditions. These conditions may include: 

  • 1.Custody with persons or organizations who agree to supervise the accused;
  • 2.Restrictions on travel, association, or residence;
  • 3.House arrest, electronic monitoring, or a work-release program;
  • 4. Regulate or prohibit contact with the victim;
  • 5. Regulate contact with witnesses or others upon proof of likelihood that the accused will threaten, harass, cause injury, or try to intimidate;
  • 6. If the offense is alcohol or drug-related, to attend treatment while on bail; and
  • 7.Any other constitutional condition reasonably necessary to assure appearance or public safety.

    Of course, the seventh condition is very broad and is limited only by the discretion of the trial judge.

    Since the type and amount of bond are so important to the liberty of the accused, the attorney of the accused must focus early in the case of obtaining a bond that is reasonable.

Part two coming soon…

Thomas D. White


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