One of the bedrocks of the criminal justice system in the United States is that people accused of committing crimes ("defendants") are presumed innocent until proven guilty. Yet many defendants, while presumed innocent, are forced to stay in jail before trial because they can't afford 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 appear in court for hearings and trial, the defendant forfeits (loses) the bail and is typically taken back into custody. But bail is just one type of pretrial release option.
According to the National Conference of State Legislatures, more than half the states have laws that start with a presumption that defendants who aren't 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.
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 charges and the defendant's:
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.
Community supervision options can be expensive. Defendants may be required to pay for treatment, monitoring, or whatever conditions are imposed. A few states have extended ability-to-pay determinations to include community supervision fees. Defendants who can't afford supervision costs should raise the issue with their 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, including:
Bench warrants. When a defendant on O.R. release violates the order or misses a court hearing, a judge can order a bench warrant for the defendant's arrest. Defendants with bench warrants can be taken back to jail at 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, like community supervision, 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, talk to a criminal defense lawyer. A lawyer can advocate for your O.R. release, explain any conditions (and potential costs), and discuss alternatives if your request is denied.
If you've 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.