Bail is money, property, or a bond paid to the court in exchange for a defendant’s release from jail while awaiting trial. The purpose of bail is to ensure that defendants, once released, show up for future court dates. If the defendant doesn’t appear back in court at the required time, the court can keep the money or property (called bail forfeiture) and issue a warrant for the defendant’s arrest.
We’ve all seen bail play out in the movies: You get a phone call in the middle of the night. It’s a friend calling to ask: “Will you bail me out of jail?” On screen, it looks simple—post bail and give the friend a ride home. But how does bail actually work in the real world?
Not many defendants can afford to post the full amount of bail, so instead, they post a bail bond. A defendant secures a bail bond usually by paying a private bail bond company a nonrefundable premium (or fee)—often 10% of the full bail amount. The bond company then guarantees payment of the full bail amount to the court if the defendant doesn't show up for court dates as required. Because the bond company could become liable for the full bail amount, it will usually require the defendant (or bond purchaser) to put up some sort of collateral (like the defendant’s car or house) to cover its potential liability.
A bail bond tends to be a more expensive option than posting cash bail. Cash bail paid directly to the court will be returned (minus a small processing fee) as long as the defendant makes all court appearances, even if the defendant is convicted. With bail bonds, the defendant (or bond purchaser) is out the 10% fee no matter what happens.
A judge or magistrate typically sets bail at the first court appearance, either a bail hearing or arraignment. Historically, courts used “bail schedules” as a starting point for bail amounts. A bail schedule lists standard bail amounts for common criminal charges in that jurisdiction. (For instance, a bail schedule might recommend $20,000 for felony burglary charges and $1,000 for misdemeanor trespassing charges.)
In some cases, a defendant might have the option to post bail at the police station, immediately after arrest. While this option speeds up the release process, the defendant will need to pay the amount listed in the bail schedule and won’t be able to argue for an amount lower than what’s listed. Only a judge or magistrate can raise or lower (or waive) bail at a hearing.
Courts are using bail schedules less frequently to set bail amounts. Instead, judges are relying more on risk-based assessments to determine the likelihood a defendant, if released pretrial, won't return to court (flight risk) or poses a danger to the community or a victim (public safety risk). The higher the defendant's flight or public safety risk, the higher the judge will likely set bail. (In some states, judges can deny bail.)
A risk-based assessment takes into account not only the seriousness of the crime charged but also a defendant’s prior criminal history, ties to the community, and prior missed court dates. Some jurisdictions use risk assessment tools that calculate a score judges can use to help decide whether to release a defendant pretrial and, if so, under what conditions.
If a defendant doesn’t pose a flight or public safety risk, the court might release the defendant on recognizance (or promise to appear). Release on recognizance (O.R.) means the defendant doesn’t have to pay bail, but judges usually place some conditions on a defendant’s release.
In addition to or in lieu of bail, courts can order pretrial supervision and other conditions of release. For instance, a judge releasing a defendant O.R. might order conditions, such as:
Other common conditions of release include stay-away orders (to protect victims), passport surrender, weapons prohibitions, and a general order not to break any laws. Violation of any of these conditions could result in bail forfeiture, re-arrest, or being jailed until trial.
If a defendant can’t afford to post bail or a bail bond and is unable to get out of jail, some states allow or require a bail review hearing. At this hearing, the judge will typically consider the defendant’s ability (or inability) to pay bail and examine the defendant’s financial resources as well as responsibilities (such as childcare and rent). If the court determines the defendant is financially unable to post bail, the court might reduce the bail amount, release the defendant O.R., or in some states, allow alternatives to paying bail (such as community service).
If you or someone you know has been arrested, an experienced criminal defense lawyer can help secure your release and argue for favorable bail and release terms. It’s important to seek legal help when facing any criminal charges or proceedings.