One of the bedrocks of the criminal justice system in the United States is that defendants are presumed innocent until proven guilty. Yet many defendants are detained in jail before trial (while presumed innocent), because they cannot afford to pay for their release by posting bail.
Bail acts as a type of collateral—usually in the form of money or property—paid to the court in exchange for the defendant's release from jail pending trial. If the defendant fails to show up back in court for hearings or trial, the defendant forfeits (loses) the bail and can be arrested. But bail is just one type of pretrial release option.
In nearly half the states, the law starts with a presumption that defendants who are not a flight risk or danger to public safety should be released pretrial on the least restrictive conditions possible. Generally, the least restrictive release condition is release on your own recognizance (or O.R. release).
Defendants who are released O.R. (called R.O.R. in some states) sign an agreement promising to return to court as required—without having to pay bail as a guarantee. Some liken it to a “get out of jail free” card, but it’s not quite that simple. A judge can impose conditions on a defendant’s O.R. release and order a bench warrant for a defendant who fails to appear for court (see below for more details).
An O.R. release can be the cheapest way for a defendant to get out of jail, but it isn’t necessarily the quickest way out. For most defendants, posting (paying) bail is the quickest way to get out. In many places, bail is initially set according to a bail schedule adopted by the local court. A bail schedule establishes set bail amounts for common crimes. After being booked in jail, a defendant can pay the set amount on the bail schedule and be released. Defendants who can’t afford to post bail consistent with the schedule must wait to see a judge at their first court appearance, usually held within 48 to 72 hours after an arrest.
Judges considering a defendant’s O.R. release request typically review the charged crime(s) and the defendant’s:
Ability to Pay Bail?
Many states are working to reform their pretrial release systems and reduce (or even eliminate) the use of cash bail. Judges are increasingly considering a defendant’s ability to pay bail when making release decisions. The Eighth Amendment to the United States Constitution prohibits “excessive bail.” But how does a judge decide how much bail is excessive without knowing a defendant’s income, assets, and expenses?
For example, Jose Alvarez is arrested for felony burglary. His bail is set at $55,400 (the average felony bail amount.) Mr. Alvarez is employed as a mechanic. He makes $45,000 per year. He lives with his mother and pays only for his food and gas. He can’t pay the full $55,400 to the court, but he can afford to pay a bail bond agent a nonrefundable fee (usually 10% of the bail) in exchange for a bond. He will get out of jail and be able to keep his job while he fights his case.
Alex Jones is also arrested for felony burglary. His bail is set at $55,400. He is a dishwasher at a restaurant. He makes minimum wage. He shares an apartment with roommates, but rent still eats up most of his income. He has two children. He can’t afford cash bail or a bail bond. A bail amount of $55,400 might as well be no bail for him. He will stay in jail. He could lose his job, apartment, and maybe even custody of his children. He might be pressured to plea bargain just to get out of custody, regardless of his guilt.
In states that require an ability-to-pay determination, Mr. Jones' $55,400 bail would be excessive based on his income, assets, and expenses. A judge would have to consider alternatives, like O.R. release with conditions (see below), to address public safety and flight risk concerns and not simply keep Mr. Alvarez in custody because he is poor.
All defendants who are released O.R. must agree to return to court and “obey all laws.” Judges can impose additional conditions on a case-by-case basis. For example, a defendant charged with driving under the influence (DUI) for the second time might be ordered to stay away from bars and not consume any alcoholic beverages. A defendant in a domestic violence case might be ordered to have no contact with the alleged victim.
Judges can also order community supervision as a condition of O.R. release. Defendants on community supervision must regularly check in with a pretrial case manager who enforces the court’s order. Defendants on community supervision might have to submit to drug testing, participate in substance use treatment, or even agree to electronic monitoring.
Be aware that community supervision options can be expensive. You might be required to pay for treatment, monitoring, or whatever conditions are imposed. A few states have extended ability-to-pay determinations (see above) to include community supervision fees. If you don’t think you can afford the supervision costs, raise the issue with your attorney or the judge.
Being released O.R. isn’t a free pass. Defendants who violate the terms of their release or fail to return to court face consequences.
Bench warrants. When a defendant on O.R. release violates the order or misses a court hearing, the judge can order a bench warrant for the defendant’s arrest. Defendants with bench warrants can be taken back to jail any time after the warrant issues.
New conditions. Failure to abide by the release terms can result in new, stricter conditions being imposed. The judge might require the defendant to post bail or impose additional conditions on release.
New criminal charges. Defendants can be charged with a new crime or contempt of court for failing to appear in court while on O.R. release. Laws vary from state to state. See Bail Jumping—or Failing to Appear After Bailing Out for more details.
Driver license suspensions. In some states, a judge can order a defendant’s driver’s license suspended for failing to appear in court.
Defendants who are denied O.R. release might ask for supervision conditions or a low bail amount and investigate whether other bail or bond options are available. Some courts allow unsecured appearance bonds that a defendant only pays upon a violation. Another possibility is court-financed bail, which is basically a hybrid system that allows defendants to post a refundable percentage (usually 10%) of the total bail amount with the court instead of purchasing a bond from a bail bond agent.
In states that require ability-to-pay determinations (see above), courts might be required to take a “second look” at the bail amount initially ordered to see whether the inability to pay is keeping the defendant behind bars.
If you have been arrested, consult an experienced criminal defense lawyer. An experienced lawyer can advocate for your O.R. release, explain any conditions (and potential costs), and discuss alternatives if your request is denied. If you have missed your court date and don’t know what to do, talk to a local criminal defense lawyer. A knowledgeable lawyer will be able to explain the applicable law and help you figure out the best course of action.