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Understanding How Bail Works

November 8, 2019

Within the criminal justice system in the United States, accused parties are presumed innocent until proven guilty. It is not until a verdict is delivered at a trial that a person’s guilt will be determined and his or her sentence delivered. However, it can take several weeks or even months for a trial to be set in a criminal case following an arrest, but most people will not sit in a jail cell until their court date arrives. Instead, they will be released following their arrest on the condition that they return to court for their trial. For many people, this agreement comes with an insurance policy in the form of a refundable payment to the court: Bail.

If you’ve ever been arrested or know someone who has—or if you’ve ever watched any crime show on network television—you are likely familiar with bail. Posting bail means surrendering a sum of cash (or property of equivalent value) to the court, which will be held until the defendant’s trial. If the defendant shows up to court at the scheduled time, the bail will be returned. Otherwise, an arrest warrant is issued for the defendant and the court may keep the bail payment or property. 

Setting Bail 

The cost of bail will vary depending on a few factors, most importantly the type of crime in question. For minor crimes, you may not even be brought to jail or required to pay bail. You will simply be issued a citation and instructed to show up in court at a specific time. If you are arrested and booked, you can arrange an immediate release from prison by posting bail according to the jailhouse bail schedule. This is a standard fee for common, non-violent crimes, and it may be paid prior to an arraignment or bail hearing. 

In some cases, you will have to wait until your arraignment to be granted bail and for an amount to be set. In these situations, the judge will set bail based on the existing bail schedule as well  arguments presented by the prosecutor as well as your defense attorney. Bail may be denied if you are a previous offender with a history of failing to show up to trial. You may also be denied bail if you are considered a flight risk due to the availability of considerable financial resources or few ties within the local community.

Paying Bail 

You may pay bail outright in cash, or it might be paid through a bail bond secured through a third party if you are unable to pay your bail in full (or put up property in an equivalent amount). Bail bonds are issued for a portion of the bail amount, usually 10%. With a bail bond, the bondsman agrees to pay bail if the defendant does not show up to trial. When the defendant does show up to court, the bondsman keeps the 10% fee.

Once you have paid bail, you will agree to follow the conditions of your release, which will include the requirement that you follow all laws. There may be additional conditions based on the circumstances of your arrest. For example, you may be instructed to not contact a former employer if you were arrested for trespassing on company property.

Alternatives to Bail 

There are a handful of get out of jail free cards that can serve as alternatives to bail. In some cases, a defendant may be released on his or her own recognizance. This type of release may be granted if you are not deemed a threat to yourself or others, have no history of criminal behavior, and have established ties to the community, such as close relatives that live in the same area. You may also make an argument for a release on your own recognizance if you are the primary caretaker for another individual, such as your child or elderly parent.

A judge may also grant release without bail in a third-party release. In this situation, the defendant would be released to a third responsible party who will then answer to the judge if the defendant does not show up for trial.

If you’ve been arrested for any crime in southern Arizona, you should contact a criminal defense attorney as soon as possible to review your case. Janet Altschuler is an experienced defense lawyer who is passionate about defending her clients’ rights. Her practice is exclusively dedicated to criminal law, so you know your case is getting the attention and expertise it deserves. To schedule a consultation with Ms. Altschuler, call (520) 247-1789.