Bail FAQ

What it means to post bail, how to pay for it, and what to do if you can't.

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What does it mean to "post bail?"

Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.Bail can take any of the following forms:

  • cash or check for the full amount of the bail
  • property worth the full amount of the bail
  • a bond-that is, a guaranteed payment of the full bail amount, or
  • a waiver of payment on the condition that the defendant appear in court at the required time, commonly called "release on one's own recognizance" or simply "O.R."

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Who decides how much bail I have to pay?

Judges are responsible for setting bail. Because many people want to get out of jail immediately and, depending on when you are arrested, it can take up to five days to see a judge, most jails have standard bail schedules which specify bail amounts for common crimes. You can get out of jail quickly by paying the amount set forth in the bail schedule.

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Are there are restrictions on how high my bail can be?

The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over.

Some judges set a high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by some to violate the Constitution, this practice has continued in many courts.

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What can I do if I can't afford to pay the bail listed on the bail schedule?

If you can't afford the amount of bail on the bail schedule, you can ask a judge to lower it. Depending on the state, your request must be made either in a special bail-setting hearing or when you appear in court for the first time, usually called your arraignment.

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How soon can I appear before a judge?

In federal court, a person taken to jail must be brought "without unnecessary delay before the nearest available . . . magistrate." Most states have similar rules. In no event should more than 48 hours elapse (not counting weekends and holidays) between the time of booking and bringing you to court.

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How do I pay for bail?

There are two ways to pay your bail. You may either pay the full amount of the bail or buy a bail bond. A bail bond is like a check held in reserve: It represents your promise that you will appear in court when you are supposed to. You pay a bond seller to post a bond (a certain sum of money) with the court, and the court keeps the bond in case you don't show up. You can usually buy a bail bond for about 10% of the amount of your bail; this premium is the bond seller's fee for taking the risk that you won't appear in court.

A bail bond may sound like a good deal, but buying a bond may cost you more in the long run. If you pay the full amount of the bail, you'll get that money back (less a small administrative fee) if you make your scheduled court appearances. On the other hand, the 10% premium you pay to a bond seller is nonrefundable. In addition, the bond seller may require "collateral." This means that you (or the person who pays for your bail bond) must give the bond seller a financial interest in some of your valuable property. The bond seller can cash-in this interest if you fail to appear in court.

Nevertheless, if you can't afford your bail and you don't have a friend or relative that can help out, a bond seller may be your only option. You can find one by looking in the Yellow Pages; you're also likely to find bond sellers' offices very close to any jail. Finally, be ready to pay in cash, a money order or a cashier's check. Jails and bond sellers usually do not take credit cards or personal checks for bail.

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Is it true that a defendant who proves his reliability can get out of jail on his word alone?

Sometimes. This is generally known as releasing someone "on his own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court. He doesn't have to post bail. A defendant commonly requests release on his own recognizance at his first court appearance. If the judge denies the request, he then asks for low bail.

In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:

  • The defendant has other family members (most likely parents, a spouse or children) living in the community.
  • The defendant has resided in the community for many years.
  • The defendant has a job.
  • The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
  • The defendant has been charged with previous crimes and has always appeared as required.

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Copyright 2004 Nolo