Cash Bail/Bail Bonds

Common Questions about Cash Bail and Bail Bonds

What is Bail?

Strictly speaking, bail is an amount of money temporarily given to the court by a person charged with a crime to assure compliance with conditions of release and to assure that the charged person will show up in court. The idea behind bail is that, if you have a significant sum of money riding on it, you’re going to do what the court says to avoid losing that money. A failure to comply with court ordered conditions of release or a failure to show up in court results in that money being taken permanently or “forfeit.” Excessive bail is prohibited by the 8th Amendment of the United States Constitution.

Why do courts set bail or bond? Aren’t people presumed innocent?

Let’s start at the beginning. The law presumes that a person should be released from custody on non-monetary conditions, rather than paying a bail amount. This means the court can order the person to do certain things – show up when told, not leave the state, not drink alcohol – and then release the person on their own recognizance. The reality is, after an arrest and charge, in my experience, this happens about 0% of the time.

Even though everyone is presumed innocent in this country, the judge does have the authority to set  bail (usually with conditions of release) before allowing a person charged with a crime to be released from jail. If the bail is too high and the person charged can’t come up with the money, he or she will stay in jail until the case is resolved. If you sit in jail for six months waiting for trial and are acquitted, or the charges are dismissed, it’s a hollow victory. The state has taken from you something you can never get back and you can’t sue over such an incarceration, even if the charges are later shown to be false

How does the court decide how much bail to require?  

The bail amount is based on two things; the likelihood that the person charged will show up in court and issues of public safety. If the person arrested is from out of state or has a history of skipping court or is homeless, the court will question whether they’ll come back for their next hearing and bail will be set accordingly. If the crime is more serious or the person arrested has a pattern of criminal conduct, then the court will find that there are public safety concerns and, again, bail will be set accordingly.  

This sounds fair and, in theory, it is. The problem is, most bail hearings are conducted with only the prosecutor and judge there and big numbers appeal to the government.  Once that big number is out there, it’s hard to change.

But can’t you address bail and conditions of release at any time? So after I hire you, couldn’t we go back to court and argue that the bail amount should be reduced?

Yes. And here’s how those hearings usually go:

Your Lawyer: “Your honor, my client is a lifelong resident of the county, has never even had a traffic ticket, has no connections out of state, has no passport, doesn’t drink and will agree to any conditions set by the court. He simply cannot make the amount of bail previously set and we’d ask that it be reduced by half.”

Prosecutor:  “Your honor, Judge Friendly set bail last Monday at $100,000 and nothing has changed since then. There is no reason to question Judge Friendly’s decision and I’d ask that bail remain as set by Judge Friendly.”

The Court: “That’s true, Judge Friendly did set bail on Monday and I see no reason to change it.”

You see, judges are loathe to second guess another judge’s order, regardless of whether circumstances are shown to be different.  Getting the amount of bail reduced is an uphill battle. If at ALL possible, if you or a friend have been arrested, call me BEFORE the bail hearing. Otherwise, a big number may be set and that big number is tough to change.  

What’s the difference between cash bail and a bond?

A person charged can post bail in two different ways – by handing the court administrator cash or by purchasing a bail bond. When cash is posted, that amount is returned to the person charged after the case is done. When a bond is purchased, the person charged buys a bond from a licensed bail bond agent and the amount paid for that bond is non-refundable.  That bond is a legal contract between the bond company and the court saying, if the person charged doesn’t show up in court, the bond company has to pay the court the entire bond amount.  Bond agents generally charge around 10% of the entire bond amount.  So if the court sets the amount of bail at $10,000, the person charged can either post the entire $10,000, in cash, or purchase a bail bond for around $1,000. Remember, when you purchase a bond, that $1,000 is gone forever.

Sometimes it’s advantageous to purchase a bail bond, sometimes not. Some bond agents are more honest about this than others. I can advise you on every aspect of your or your loved one’s case, including this issue.  I know who’s reputable in the field and who is not.

When Should I call you?

If you or someone you care about has been arrested or criminally charged, don’t go to court and “test the waters” to see what may or may not happen.  This is not one of those things you want to take lightly. Call me any time, 24 hours a day, and do it before your first court appearance.

Chris Karpan