BAIL INFO

Bail is a term that describes the release of an arrestee or criminal defendant after an arrest prior to the end of the criminal case. Bail can – but does not always – involve the defendant (or someone on the defendant’s behalf) paying money to a court. The money ensures that the defendant returns to court for the remainder of the criminal justice process. Bail is not a punishment given prior to a person being found guilty of any crime, but a way to ensure that criminal defendants return to court without the necessity of keeping them in physical custody the entire time they are required to appear in court.

Bail in its many forms plays an important role in the criminal justice process- It serves to both limit the amount of jail space needed and ensures that persons being charged of a crime are free of physical custody while their cases are ongoing will return to court. People can be released on bail at almost any stage in the criminal justice process, such as immediately after an arrest, or even after a court has issued a sentence.

In general, any time a person is arrested there will be three possible outcomes: they are charged and released on a promise to appear, they are charged and released on bail, or they are charged and remain in custody until the case comes to an end. Bail in its many forms is a way people can be released from jail prior to a court determining guilt.

Arrests

When police or law enforcement officers arrest people, they physically take the arrestees into custody. People under arrest are typically taken by police into custody, placed into a police vehicle, and then transferred to a jail or criminal processing facility for an administrative process often referred to as “booking".  During this process, the person will be booked for charges filed by the arresting officer. Sometimes law enforcement will release a person without filing charges, but if charges are filed; the arrestee will have to remain in custody until released on bail until a court renders a judgment, or until the charges/case is otherwise resolved.

Booking

Booking is the administrative process that follows an arrest. During this process, the police perform a series of tasks, such as taking the arrestee’s photo, recording personal information such as name, date of birth, and age, taking fingerprints, taking any physical possessions the arrestee has and placing them into a storage facility, searching for any warrants, performing a health evaluation, and placing the arrestee in a detainment holding area.

Post Arrest Custody Pretrial Release

After the police have arrested and booked someone, one of three things will typically happen: First, the police can release the defendant with a written notice to appear at court. Second, the police can release the defendant after he or she pays the appropriate bail amount. Third, the police can keep the defendant in custody until a court holds a bail hearing after being interviewed by the Probation Department. The Probation Department will recommend to the Court the likelihood the Defendant will return to court; based on prior arrest record, ties to the community and seriousness of the crime. In addition to these options, Defendants can also be released on an ankle monitor which will involve a fee paid to the court which is also a form of bail.

State law determines which of the three options applies in any given situation. In general, arrests for low-level crimes, such as disorderly conduct or petty larceny, will more often result in release with a written notice to appear, while more serious crimes, such as serious violent offenses, will result in the defendant remaining in custody until a court can hold a bail hearing

Bail Schedules

Bail schedules are lists of bail amounts that apply to individual crimes in any jurisdiction. In California, the Judges for each county/jurisdiction meet annually to determine and set the bail schedule for offenses/crimes.  For example, a county's bail schedule may set bail for the crime of disorderly conduct at $1,000, or set a $10,000 bail for burglary.

State & County laws will determine not only what bail amounts are appropriate for each crime and whether police can release a defendant without requiring bail, but also whether defendants are allowed to post bail following booking or if they must wait for a bail hearing. They also typically allow judges significant latitude in increasing or decreasing bail when the court deems it appropriate. (Federal courts do not have bail schedules, and bail amounts are up to the discretion of the court.)

Bail Hearings

When a court holds a bail hearing, it determines how much bail applies to a specific case. Courts do not always have to allow bail, and can deny it if allowed by state law.

When the court determines bail amounts or whether to deny bail, it weighs a variety factors:

Flight Risk

Some defendants pose a higher flight risk than others. For example, defendants who are facing sentences that impose death or long periods of incarceration may be more likely to try to flee than those facing less serious penalties.

Community Connections

A person with strong connections to a community, such as someone who owns a local business or whose entire family is located in the area, may be less likely to flee or fail to reappear at court than someone who is merely visiting.

Family Obligations

Courts may be more likely to impose a lesser bail amount when a defendant is responsible for the well-being of family members or other dependents.

Income and Assets

A defendant with a lot of money or assets may not see a low bail amount as a significant deterrent, while those with few assets may be significantly affected by bail amounts outside of their resources. Similarly, a court can consider if a defendant is employed and likely to lose that employment as a result of being unable to pay bail and remaining in custody.

Criminal and Court History

People with criminal histories – especially those with histories that involved failures to appear at court – typically have higher bond amounts than those who are in the criminal justice system for the first time. For example, if a defendant has been granted bail numerous times in the past but has always violated bail conditions or failed to appear in court, courts will typically impose much higher bail than they would for someone with no past history of failing to appear. Or, they may even deny bail entirely.

Seriousness of the Crime

In general, more serious crime will have a higher bail amount than a less serious crime. For example, bail for someone accused of a minor theft may be $1,000 or less, but bail for someone accused of murder could be hundreds of thousands of dollars or more.

Public Safety

If a defendant’s release would pose a risk to the health and safety of others, or to the community at large, courts typically refuse to allow bail at all. For example, a defendant charged with conspiring to commit an act of terrorism may be denied bail, as releasing that person could pose a risk to the lives of others.

Bail Conditions

In addition to determining a bail amount that a defendant must pay to be released, courts typically impose additional limitations or requirements on defendants when making a bail determination. These limitations are similar to those imposed on people found guilty of a crime and sentenced to probation. Violating bail conditions can result in police taking the defendant back into custody until trial, as well as the forfeiture of any bail paid.

The following are typical conditions of bail:

Pretrial Check-Ins

Much like checking in with a parole or probation officer, people on bail can have to make regular check-ins with pretrial services officers. Pretrial services officers monitor defendants prior to trial to make sure they are complying with any orders or conditions imposed by the court.

No-Contact Orders

In cases where the defendant is accused of stalking, domestic violence, making criminal threats, or other similar crimes, the court typically imposes a no-contact order. The order requires the defendant to refrain from contacting the alleged victims of the crime.

Employment

Courts can require a defendant to maintain employment while on bail. If the defendant is unemployed, the court can require him or her to attempt to find employment while on bail.

Travel Restrictions

Defendants on bail are typically not allowed to leave the area unless specifically allowed by the court or pretrial services officer.

Substance Abuse

Bail conditions, especially those in cases involving drunk driving, drug possession, or other substance-abuse related offenses, typically require the defendant to refrain from using drugs and alcohol.

Firearms Restrictions

Bail conditions may require the defendant to refrain from possessing firearms, even if the charged crimes did not involve the use of firearms.

Post-Conviction or Sentence Bail

In some situations, bail is possible even after a person has been convicted of (or sentenced for) a crime. Typically, once a court issues a jail or prison sentence, the defendant must begin serving the sentence immediately. For example, if a judge sentences someone to five years in prison, bailiffs will take the defendant into custody and transfer him or her to a detention center to begin serving the sentence.

However, courts can allow criminal defendants to be released on bail after a conviction or sentencing if the defendant files an appeal. For example, if a court sentences a defendant to five years in prison but the defendant files an appeal of the conviction, the sentencing court may grant that defendant bail and allow that defendant to remain out of custody until the appeal has been heard by an appellate court.

Like other bail issues, state laws govern post-conviction or post-sentencing bail, and not all states allow for it. In states that do, the court typically has broad discretion in granting bail, as well as in determining the appropriate bail amount to set.

Bail Payment Procedures

Each jurisdiction not only has its own rules on how bail is determined and who can be released, but also has its procedures for how bail payments must be made. Typically, the payment process requires that someone travel to a specific location, such as a courthouse or a jail. A cashier, clerk, or other official at the location is responsible for receiving bail payments. The payer must provide the clerk with specific information, such as the defendant’s name, the case or booking number, and the bail amount to be paid. (The clerk or official often has access to this information, and can find out how much bail must be paid.) The payer must then submit the appropriate bail amount to the clerk.

Once the clerk’s office has received the bail payment, it notifies the corrections officials who are keeping the defendant in custody, and they release the defendant from jail. In some situations, the bail release happens almost immediately because the clerk is located in the same facility as the jail, while in other situations it may take several hours or more for the defendant to be released.

Bail payments must typically be made in cash or with some other form of accepted payment, such as credit or debit card, certified or cashier’s check, traveler’s checks, or money order. Accepted payment amounts differ from jurisdiction to jurisdiction.