So you want to post bail for someone?
* Cash, property or other collateral
* Attorney (optional)
* Bail agent (optional)
Attend the bail hearing (with an attorney if you have one). A bail hearing is typically held within 48 hours of a defendant’s arrest and allows for a judge to determine the severity of the crime, take into account criminal history and decide whether a defendant is at risk of “jumping” bail.
Learn the conditions of bail. When bail is granted, there are often stipulations attached. In addition to staying out of further legal trouble, the defendant may have a curfew to follow, a certain area in which they must reside or a person they must avoid. The conditions will vary depending on the crime and the judge’s orders. Defendants who have committed minor crimes are often released “on their own recognizance” without bail. They promise to appear before the court on an appointed date and are not required to provide cash or collateral before being released.
Find out which of the 5 types of bail** has been granted, and determine which type of bail you want to post.
Determine where to post bail. Knowing whether the cash or documents need to be brought to the courthouse, the police station or the jail can save time and allow the defendant to be released sooner. Your attorney or bail agent may help with the arrangements, as they’ve likely done it many times.
Be patient. A defendant isn’t always released immediately after you post bail. It may take a few hours before all of the paperwork is completed. However, if you are concerned that the defendant will be in danger while they wait, ask your attorney to expedite the process.
*How bails are determined: The judge will decide how much the bail will be by looking at several factors, and has the right to deny bail if concerned that a defendant is an immediate danger to society or is unlikely to reappear for trial. Here are some of those factors:
The severity of the charge: If the charge is really serious, the bail may be set pretty high. For example, the bail would be set higher for the bank robbery than disorderly conduct.
Past criminal history: If the defendant has a history of criminal charges, the judge may set a higher bail even if the charge is not as serious. The judge will look at the number of prior convictions, the severity of the convictions, the recent conviction, and how similar the convictions are to the present charge.
Prior warrants: If the defendant has any prior warrants for their arrest, bail will be set higher than normal. The judge may even decide not to set any bail but to have the person thrown in jail. If the defendant does have a prior warrant that was cleared, it still shows the judge they failed to appear in court for the charge. Thereby, the judge may set the bail high enough to ensure that the defendant does come back.
Ties to the community: If the defendant is well-respected in the community and has ties to it in some way, they may get what is referred to as an ROR bail set for a misdemeanor and released. These ties can include owning a home, having a full-time steady job, living in the same area for a long time, having family in the same community, being a US citizen, and having family and friends in the courtroom during the proceedings.
**Types of Collateral:
Own recognizance/ROR: This means the defendant is released upon promising to the court that they will attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited. This is called an unsecured appearance bond or release on one’s own recognizance.
Cite out/On citation: This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.
Cash: Paying in cash is preferable to using a bail agent/surety bond as it will save bail bond fees. Or, if no bail bond agency will write the bond, the cosigner must raise the money to post bail in cash. If a cash bond has been issued to the defendant, he can post the total amount of the bail to the court in cash. In this case, the defendant may be his or her own guarantor. In some cases bail money may be returned at the end of the trial, if all court appearances are made, no matter whether the person is found guilty or not guilty of the crime accused. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued.
Surety bond: The defendant (or co-signor) enters into a contract with an insurance company. A bail agent guarantees that the defendant will show up for his court dates. The bail agent backs up this promise with their own assets, or works with an insurance company that has the assets. The defendant is charged a percentage of the bond, a “premium” (generally 10% of the total bond). If you cannot pay the premium, the bail bonds agency will typically arrange financing for you.
First, the bail agent interviews the defendant or the co-signor. If a bondsman does not wish to write the bond because of risk of flight or other reasons, you will need to call other bond agencies to try to get someone to write the bond. The bail agent will need the defendant’s legal name, date of birth, where they are being held, the booking number, the charge, and how much the bail is. The bail agent then contracts with the co-signor to pay the premium and guarantee that they will pay the entire bond or any expenses incurred by the bail agent should the defendant skip bail. This contract guarantees that the defendant will appear at all scheduled hearings and trials. Co-signers typically need to be working and either own or rent a home in the same area for some time. The bail agent then goes to the holding facility to post bail, and have the holding authority complete the bond paperwork. Once signed off on, the defendant is released into the bondsman’s custody and they will contact you to pick up the defendant. The bail agent will then submit the completed paperwork to the surety company. If the defendant skips bail and cannot be apprehended, the bond is forfeited and the agent will attempt to collect the full amount of the bail bond from the co-signer. If the defendant ‘skips,’ the co-signer is immediately responsible for the full amount of the bail. If the defendant is located and arrested by the bail agent, the co-signer is responsible for all expenses the bail agent incurs while looking for the defendant.
Property bond: Used in rare cases and in certain jurisdictions. The accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. Often, the equity of the property must be twice the amount of the bail set. If the defendant fails to appear for trial, the state can levy or institute foreclosure proceedings against the property to recover the bail. The Property Taxpayer’s Bill of Rights requires that your property tax bill show the full value of your property, the assessed value, and the uniform percentage at which properties in your assessing unit are assessed. With those three items, and knowledge of what property is worth, you can determine if your property is being treated fairly. Sometimes a property bond may be posted with the court. The court will record a property lien on the property of the defendant (or of his co-signor).
Under the Sixth Amendment to the U.S. Constitution, you have the right to demand bail. The 14th Amendment outlaws setting bail at excessive levels.
In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.
18 USC 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.
Bail laws vary somewhat from state to state. Generally, a person charged with a non-capital crime is presumptively entitled to be granted bail. Recently, some states have enacted statutes modeled on federal law, which permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.
Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule. These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.