Posting Bail: What Are Your Options?

Jennifer E. King for lawyers.com

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When someone is arrested and charged with a crime, there's usually a lag--often months, sometimes longer--before their case goes to trial. The legal system has processes in place that allow the accused to be released from jail in exchange for money (called bail), a pledge of property or a personal promise to return to court for all necessary hearings. If the person makes all scheduled court hearings, bail will be refunded to the accused (regardless of guilt or innocence) at the conclusion of the trial. If the person misses a court date, their bail is may be forfeited and a warrant will likely be issued for their arrest.

Bail is usually set at an amount that presumably is large enough to compel the accused to return to the court. The specific amount of bail will vary depending on the jurisdiction and the judge, and may be influenced by a number of factors including the severity of the crime, whether the accused has a criminal record, the likelihood that the accused will flee, and the accused's financial resources. Consequently, two people charged with the same crime may be required to pay different bail amounts.

The Eighth Amendment of the U.S. Constitution guarantees that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," and subsequent laws and court rulings have better-defined how bail is set and who is eligible for bail.

Under the current laws, people may be held without bail if:

• They are a danger to the community;
• There is a chance they might flee to avoid trial;
• The person has been charged with a violent crime;
• The person has been charged with a crime that is punishable by life in prison or death;
• The person has been charged with some types of drug-related crimes that could result in more than 10 years in prison;
• There is reason to believe the accused could attempt to obstruct justice or tamper with witnesses; or
• The person is a repeat felony offender.

As a practical matter, judges may also set an extraordinarily high bail--one that most people couldn't afford--as a way of keeping a defendant in jail while awaiting trial.

Release on One's Own Recognizance

In some instances, particularly for minor crimes, the court may agree to release the accused without requiring any payment of money or posting of personal property. This is known as being released on one's own recognizance (sometimes shortened or O.R. or R.O.R.). The court is essentially saying that the person has a good reputation and can be trusted to return for future court dates without needing the financial motivation of bail.

Before agreeing to release a person on their own recognizance, a judge will probably evaluate a number of factors including:

• The severity of the crime;
• A person's ties to the community;
• A person's personal reputation;
• Whether a person would be able to afford the financial burden of bail; and
• Whether it's beneficial for the person to return to his or her family, friends and job.

Using a Bail Bondsman

Many people are unable to afford bail, or don't have easy access to large sums of money. In these cases, people often turn to a bail bondsman to help pay for their bail. A bail bond is a contract between three parties, the surety (the bail bondsman), the obligee (the court) and the principal (the accused). Under the terms of a bail bond, the bail bondsman is promising pay the full bail amount to court if the accused fails to adhere to the terms of his or her release. A separate contract will also exist between the bail bondsman and the indemnitor (a friend or family member of the accused). That contract will require the indemnitor to assist the bail bondsman if the accused fails to adhere to the terms of his release.

In exchange for posting a bond, the bail bondsman charges a non-refundable fee--typically 10 percent of the amount of bail --for his or her services. The indemnitor will also be required to sign a contract agreeing to pay the full amount of the bail should the defendant fail to appear in court as required, and to pay the bondsman's associated costs if the defendant misses court dates and the bondsman is required to locate him. By using a bondsman, the accused can gain release from jail with a smaller sum of cash--the 10 percent fee--but downside of this arrangement is that the fee is non-refundable.

Before agreeing to sign a bail bond contract on behalf of a friend or family member, make sure that you carefully read the contract and understand your obligations as an indemnitor. You will have a legal responsibility for ensuring that the person shows up for court hearings, and you'll be obligated to help the bail bondsman locate the individual if they fail to make their court dates. If you believe that the accused is irresponsible, and may miss court dates or otherwise flee the area, do not agree to consign the bail bond contract.

Commercial bail bonding is illegal in Illinois, Kentucky, Oregon and Wisconsin. In these states, defendants are often allowed to post 10 percent of the cost of bail directly to the court. This bond (called surety on the bond) is typically refunded by the court if the defendant makes all court appearances.