Many people who are arrested for a crime are released from custody (until the trial) by posting bail. Bail is money or property given to the court to ensure the defendant will return for scheduled court appearances. Bail cost will vary based on various factors, including the defendant, the jurisdiction and the crime. Generally, the more likely the defendant is a flight risk (meaning they will run instead of facing trial) and/or a danger to the community, the higher the bail. Bail cost is also dependent upon whether the defendant hires a bail bondsman to "post" bail on his or her behalf.
You have a legal right to reasonable bail. The Eighth amendment to the United States Constitution guarantees the right against excessive bail. The purpose of bail is to secure the defendant's appearance at trial and to protect the community, not to punish the defendant for a suspected crime. If you or someone you know has been arrested, speak to an attorney to protect your rights and limit the cost of bail.
Bail for traffic violations and misdemeanors (e.g., public drunkenness) can be as little as $25 and, with the exception of DWI violations, is almost always less than $5,000. Bail for felony crimes (e.g., robbery) typically ranges from $1,500 to $50,000 but skyrockets into the hundreds of thousands of dollars for very serious crimes and crimes committed under aggravating circumstances (violent offenses, etc.).
Many jurisdictions have bail schedules, including "sentence enhancements," which serve as guidelines for common crimes. Examples from the 2010 bail schedule in Los Angeles include:
- $10,000 for possession of marijuana
- $100,000 for felony DUI
- $1,000,000 for crimes not specified in the bail schedule that carry a life sentence
- $25,000 sentence enhancement for a felony hate crime
Ultimately, the judge has considerable discretion in determining whether or not to set bail and if so, for how much. A defendant charged with a minor offense who has a job and ties to the community may be released on his or her own recognizance, meaning he does not have to pay any bail money. Bail may be set higher for a person with significant financial resources than for someone less wealthy charged with the same crime. For more serious offenses, the judge may deny bail altogether. Some of the factors the judge will consider in setting the bail include:
- The nature of the crime, the likelihood of conviction and the sentence that may be imposed on conviction
- The defendant's criminal record, including previous record of court appearances
- The defendant's character, reputation and mental condition
- The defendant's employment status and financial resources
- The defendant's family ties, relationships and length of residence in the community
- The probability that the defendant would pose a threat to public safety
- The identity of responsible members of the community who would vouch for defendant's reliability
- Any other factors that lessen the chance that the defendant will flee or commit another crime and/or factors that support the defendant's constitutional right against excessive bail
It is advisable to contact a lawyer who will fight to protect your legal right against excessive bail.
Bail may be paid outright to the court (with cash or with a pledge of property) or with a surety bond obtained from a bail bondsman. Anyone can pay bail, including friends, family, co-workers, and of course the defendant.
Pay The Court Directly. If the defendant is able to pay the full amount of bail in cash directly to the court (alone or with the help of friends and family) the bail is returned to the bailer at the end of the proceedings (minus any administrative fees). If the defendant fails to appear in court the bail money is forfeited (there is usually a 30-90 day window to bring the defendant back to court if he or she misses an appearance).
Pledge Property. In some jurisdictions the court may allow you to put up property (e.g., your home) as collateral instead of cash bail. The person offering the collateral may be required to have equity in the property greater than the bail amount, often as much as 150-200 percent. While a defendant can be bailed out of jail with cash in a matter of hours, the process of bailing a defendant out of jail with a pledge of property can take days or even weeks. If you fail to appear, your property may be seized.
Use A Bail Bondsman. If you are not able to pay for bail with your own money or property, a bail bondsman (also called a bondsperson, bail agent, and bond agent) might be a good option. A bail bondsman provides the court with a "surety bond," which is a promise to pay the court if you fail to appear. The costs associated with a bail bondsmen include:
- A non-refundable fee customarily equal to 10 percent of the bail amount
- Any reasonably necessary expenses to complete the transaction (e.g., financing costs)
- Any costs associated with locating the defendant (e.g., if the defendant fails to appear) and bringing him back to court or jail
Additionally, bail bondsmen often require additional guarantors and/or a pledge of collateral such as your home, jewelry or car. If you fail to appear in court on your assigned day and time and the bondsman has to pay the court, then you or the guarantor will have to pay the bondsman the full amount of the bail or turn over whatever property was offered as collateral.
When considering the cost of bail, your lawyer can help evaluate the option of obtaining the bail money from a bail bondsman versus posting the entire bail amount with your own funds. Even if a person has the resources to pay the entire bail, the cost of losing access to his or her funds for the duration of the criminal proceedings and/or the overall risk of loss might be greater.
In jurisdictions that prohibit commercial bail bonds, many courts will still allow the payment of 10 percent, but it goes to the court rather than a bondsman.
More than 500,000 people remain in jails in America because they are unable to afford bail.
Source: National Public Radio