Bail Bonds and the Criminal Justice System – How Do They Work Together?
Many questions run through a person’s mind when confronted with arrest and possible bail established by the court. What happens if I can’t pay the full amount? Can someone else pay it for me? If so, who can I hire to pay it? Where do I begin? What happens after bail is paid? These are just a few of the many common questions that people ask themselves. So let’s go over what bail is, how it’s determined, what types of bail there are, and how they all interplay within the criminal justice system.
Arrests, Booking, and the Bail Process
First, let’s clarify what the term “bail” actually means. Bail is the release of a criminal defendant or arrestee after an arrest, but prior to the end of the criminal case. A common misconception is that bail always involves the defendant (or someone on the defendant’s behalf) paying money to the court. While this is common, it is not the case in every situation. The bail money paid is to ensure that the defendant appears in court for the remainder of the criminal justice process. It is not a punishment, but rather a way to guarantee that the defendant returns to court without the need to keep them in custody throughout the criminal process.
Typically, there are three possible outcomes for someone who has been arrested. The first is that the arrestee is released. The second is that the arrestee is charged, but released on bail. The third is that the arrestee is charged, but remains in custody until the end of the case. Bail is the way in which a defendant can be released from jail prior to the court determining innocence or guilt.
Bail plays an important role in the criminal justice process. It helps to both limit the amount of jail space needed and of course helps to guarantee the defendant will return to court throughout their case. Arrestees may be released on bail in almost any stage of the criminal justice process. They can be released almost immediately after arrest, or even after the court has issued a sentence.
If you’ve ever watched one of the many crime shows on TV today, you probably have a pretty good grasp on the process of being arrested. But, in case you haven’t, let’s clarify. When police or law enforcement officers arrest someone, they are physically taken into custody.
Once transferred to jail or a criminal processing facility the arrestee is then “booked” into jail. Sometimes the arrestee is released without charges being filed against them, but if charges are filed, they will have to remain in custody until they are released on bail, the court renders a judgment, or the case is otherwise resolved.
Booking is essentially the administrative tasks that must be completed following an arrest. Throughout this process, the police perform a variety of tasks including: taking the photo of the arrested person, recording personal information such as name, date of birth, and age, taking fingerprints, taking all physical possessions from the arrestee and placing them in storage, searching for open warrants, performing a health evaluation, and finally placing the arrestee in a cell or holding area.
Just as we briefly mentioned before, after someone has been arrested and booked, one of three things will typically occur. First, the arrestee can be released with a written notice to appear in court. Second, the arrestee can be released only after they have paid the applicable bail amount. Finally, the arrestee can be held in custody until the court holds a bail hearing.
Now, what determines which of the three options occurs? The answer: state law. In general, arrests for low-level crimes like disorderly conduct or petty larceny will often result in the release of the arrestee with a written notice to appear. More serious crimes, however, such as violent offenses, often result in the defendant remaining in custody until a bail hearing is held.
Now, let’s assume the crime was severe enough to require bail. What determines the amount? The general answer is bail schedules. Bail schedules are lists of bail amounts that apply to individual crimes within a jurisdiction. For example, the bail schedule may determine the bail amount for a crime of disorderly conduct at $1,000 and $5,000 for burglary.
Individual state laws, therefore, will determine the bail schedules. Not only this, but state laws will also determine whether or not police can release the defendant without requiring bail and whether or not the defendant is allowed to post bail after booking, or if they must wait for a bail hearing.
For example, in the state of California, a bail hearing is required for all cases involving specific crimes such as spousal battery, rape, and terrorist threats. If a bail hearing is required, the defendant will not be able to pay bail or be released from custody until the bail hearing has been held.
In general, if state laws allow for it, a defendant can be released on bail immediately following booking as long as they can pay the determined amount. State laws also typically allow judges to determine whether bail should be increased or decreased based upon what the court deems appropriate. Federal courts, on the other hand, do not have bail schedules, which means all bail amounts are left up to the court’s discretion.
Now, what occurs during a bail hearing and how does the court determine the bail amount? The following are the factors in which the court determines bail amounts and whether or not to deny it:
- Flight Risk. Some defendants are found to pose a higher flight risk, or likelihood of fleeing, than others. Those defendants facing sentences that impose long periods of incarceration or even the death penalty are considered more likely to try to flee than those who are facing less serious penalties.
- Community Connections. A person who has strong community connections, such as a large family presence or someone who owns a local business, may be less likely to flee or fail to appear in court than someone who is simply visiting the area.
- Familial Obligations. If the court finds that the defendant is responsible for the wellbeing of family members or any other dependent, the court may be likely to impose a lesser bail amount.
- Income and Assets. Courts also take into consideration the defendant’s income and assets, as well as their employment. Defendants with substantial money or assets probably won’t view a low bail amount as a deterrent. However, those with limited income or assets will most likely be significantly affected by a bail amount set outside their resources. Along the same lines, a court will also take into consideration whether the defendant is employed and how likely they are to lose their job if remaining in custody.
- Criminal and Court History. Naturally, the court will look into the defendant’s criminal history, especially those with histories involving failures to appear in court. Those with such histories will typically have higher bond amounts than a first-timer, or may even be denied bail entirely.
- Seriousness of the Crime. A serious crime will generally have a much higher bail than a less serious crime. For example, bail for someone charged with disorderly conduct may be $1,000, but bail for someone accused with murder could face bail of hundreds of thousands of dollars or more.
- Public Safety. Finally, if the release of the defendant would pose an immediate risk to the health and safety of others, or even the community at large, the court will typically refuse bail altogether. This is common amongst those charged with acts of terrorism.
Courts do not always have to allow bail and can deny it if it is allowed by state law.
Conditions of Bail
On top of the bail amount needing to be met in order to be released from jail, there are also additional bail conditions that must be met. These limitations are similar to those carried out on people found guilty of a crime and sentenced to probation. Violation of bail terms can result in the defendant being taken back into custody until trial, as well as forfeiture of any bail amount already paid.
The following are typical conditions of bail:
- Pretrial Check-Ins. Similar to checking in with a parole or probation officer, those out on bail may have to make regular check-ins with service officers. Pre-trial service officers will monitor the defendant up to the trial to make sure they are complying with all orders imposed by the court.
- No-Contact Orders. If the case incorporates charges such as stalking, domestic violence, criminal threats, or the like, the court will typically impose no-contact orders. This requires the defendant to refrain from any sort of contact with the alleged victim or victims.
- Employment. Courts have the power to require the defendant to maintain employment while on bail. If the defendant is unemployed, the court can even go so far as to require them to attempt to find a job while out on bail.
- Travel Restrictions. Defendants out on bail are typically not allowed to leave the area unless allowed by the court or the services officer.
- Substance Abuse. In cases involving drunk driving, drug possession, or any other substance-abuse offenses, the defendant typically can be required to refrain from using drugs or alcohol while on bail.
- Firearms Restrictions. Even if the charges are unrelated, bail conditions may also require the defendant to refrain from possessing firearms.
In certain situations, bail is possible after a person has been convicted of, or sentenced for, a crime. Typically, once the court issues the sentence, the convicted must start serving the sentence immediately. However, a court can allow the convicted to be released on bail after the sentencing if the defendant files
For example, let’s say the court sentences the defendant to five years in prison, but the defendant then files an appeal. The sentencing court may then grant the defendant bail and allow them to remain out of custody until the appeal is heard by an appellate court. As with other bail issues, state laws govern whether or not post-conviction or post-sentencing bail is allowed.
Bail Payment Procedures
Just as each jurisdiction has its own rules on how bail is determined and who is allowed to be released, it also has its own procedures for how bail payments must be paid. In most cases, payment is required to be made in person, such as at the courthouse or the jail, with the clerk. While making the payment, the payer must provide the clerk with specific information such as the defendant’s name, the case or booking number, and the amount to be paid.
Bail payments must typically be made by cash, credit or debit card, cashier’s check, or money order. Accepted payment types differ from jurisdiction to jurisdiction.
After payment has been received, the clerk’s office notifies the officials who are keeping the defendant in custody, and those officials will then release the individual. If the clerk’s office is located in the same facility as the jail, the release process will happen much quicker than if in separate locations.
Types of Bail
Many people assume bail is simply a specific amount of money that must be paid to get someone released from jail. But, it’s a little more complicated than that.
Various types of bail will be available depending upon the state or jurisdiction the defendant is arrested in. Regardless of which state or jurisdiction one is in, you can expect to see one or more of the following types of bail.
1. Cash Bond
In many occurrences, the police will not release the defendant with a citation, but rather after that person pays a cash bond. Someone else may also pay the cash bond on the defendant’s behalf. This cash bond amount is determined either by the state, the local bail schedule or by the court after the bail hearing. As long as the full amount of the bond is paid, the defendant may be released from custody.
2. Own Recognizances or Personal Recognizances Bond
Sometimes, the court will release an arrestee based on their own recognizance or personal recognizance (also known as OR or PR). OR and PR bonds are similar to a citation and release, except that this takes place after a bail hearing.
When this type of bail is allowed, the defendant is released on the condition that they will reappear for future court dates and comply with any and all other conditions of bail.
3. Unsecured or Signature Bond
An unsecured, or signature, bond occurs when a court holds a bail hearing and imposes a bail amount, but does not require the defendant to pay that amount in order to be released. Instead, the defendant must sign an agreement that states that if they do not appear at required court proceedings, they will then be obligated to pay the full bail amount.
4. Secured or Property Bond
A secured or property bond is a type of bail in which the defendant gives the court a security interest in personal property equal to the worth of the bail amount. For example, when you purchase a car by use of a car loan, you are giving the lender a security interest in the vehicle. If you fail to repay that loan according to the terms set out in the loan, the lender has the ability to repossess and sell the vehicle to recover the money still owed.
So, in the case of a secured bond, the defendant gives a security interest in a piece of property to the court as a form of bail. If the defendant fails to meet required conditions, the court can seize the property and use it as collateral to pay the unpaid bail.
5. Bail Bond or Surety Bond
A bail bond is a form of payment provided on the defendant’s behalf by a bail bond agent. If a defendant employs a bail bond agent to pay the bail, the agent acts as a surety, telling the court that they (the bond agent) will pay the full amount of the bond if the defendant fails to appear in court.
Bail bond agents typically collect a fee of about 10% to 15% of the total bail. So, assuming the court sets bail at $5,000, the defendant, or someone on their behalf, will pay the bond agent $500 (assuming the fee is 10%), with the agent now acting as a surety on the defendant’s behalf.
Bail bond agents may require the defendant, or the person acting on their behalf, to provide collateral against the bond, while also requiring a contract to be signed stating the terms of the agreement. Just like with a secured bond, the bail bond agent may require you to sign over a security interest in personal property, like a car or a home, which may be repossessed if the terms are not met.
Getting Bail Money Back From the Court
Bail is not to be viewed as a form of punishment or a criminal sentence. It is simply a means in which to ensure the defendant performs their duties within the scope of the case. If all terms and conditions of the bail are met, the defendant, or the person that paid bail on their behalf, is entitled to a refund of their money or possessions.
Release or Refund of Bail
Once a defendant is released from custody on bail, the bail will be repaid to the payer upon the conclusion of the case, assuming all conditions were met. The timeframe in which the bail funds are released depends upon the type of bail that was used and the jurisdiction in which the bail was paid.
For example, for someone who paid a cash bail, it may take anywhere from two to six weeks following the conclusion of the case for funds to be returned. If a secured bond was used, the court will need to file a lien release, which could take several weeks or more to conclude.
In some jurisdictions, such as federal courts, the court may not automatically release bail upon the conclusion of the case. In such instances, a petition will need to be filed with the court, requesting that the money paid or the lien placed on the property be released.
Keep in mind that it is common for the court to keep a small percentage of the bail as an administrative fee. This amount varies by state and by jurisdiction.
Forfeiture of Bail
If a defendant defaults on the conditions of their bail, the entire bail amount is forfeited to the court. So, if a $1,000 cash bail was paid and the defendant failed to appear in court, the entire $1,000 will not be returned to the payer. Or, let’s say a home is used as collateral in a secured bond and the defendant fails to appear. The court can foreclose on the home and use the proceeds from the sale to recover the bail amount.
Reinstating of Bail
If a defendant fails to appear in court, but can show good reason for their failure to appear, there may still be a chance for the court to reinstate bail. The defendant may petition the court to reinstate bail if they can prove a legitimate reason as to why he or she missed court – such as a medical emergency. If bail is reinstated, the defendant is allowed to remain out of custody and will still be able to have the monies refunded if bail conditions are met going forward.
Getting Bail Money Back From a Bail Bond Agent
Just as with bail money paid to the court, after the conclusion of the case and all conditions of bail being met, the bail bond agent will return the collateral and release any liens placed on a property. However, the agent’s fee (the 10% to 15% of the total bail amount) will not be returned, no matter the outcome of the case.
Now, if a defendant uses a bond agent’s services and fails to appear in court, the agent can try to find that person and bring them back into police custody. The court will typically allow bond agents a grace period after bail terms are violated. If the agent can return the defendant to court within that grace period, the court will not usually require the agent to pay the full bail amount. In these situations, the agent will usually employ bounty hunters, or bail enforcement agents, to track down the defendant.
Your Local Bail Bond Agents
If you or someone you know finds yourself in need of employing the services of a bail bonds agent, give Big Fish Bail Bonds a call! We’re available 24/7 and ready to help you with all of your bail bond needs.
Big Fish Bail Bonds is an established and well-respected agency located in downtown Wichita, Kansas, serving Sedgwick, Butler, Sumner, Greenwood, and Elk counties. Did you just say, “where is a bail bondsman near me?” Call (316) 262-4100 right away and Big Fish will help you or your loved one be where you need to be. (At home with your loved ones!)