After an individual is in police custody and has been charged with an alleged offense, she or he might be able to get released from jail by obtaining a bond or posting bail. A judge will determine the amount of the bail based on such factors as how severe the alleged offense is, how likely the defendant will flee from the jurisdiction prior to the trial, and the likelihood of additional crimes being committed by the defendant after they are released. A judge can deny bail altogether or set the bail at any amount as long as it is not objectively unreasonable. The U.S. Constitution's Eighth Amendment prohibits “excessive bail.” However, it does not state that bail must be allowed by the courts.
Bail vs. Bond
“Bond” and “bail” are words that tend to be used interchangeably when jail release is discussed. Although these terms are closely related, they are not the exact same thing. Bail refers to the money that the defendant is required to pay to get released from jail. On the other hand, a bond is posted on behalf of a defendant to secure her or his release. Usually, a bail bonds agent posts the bond.
The purpose of bail is not intended to be a punishment. Instead, it is a way to secure the agreement of a defendant to return to court and adhere to certain conditions. In this sense similar is to the collateral being left with the court to make sure that, following the defendant being released from jail that she or he will return for the remainder of the criminal case and appear in court as directed. If the defendant violates the conditions of their release or fails to appear, she or he may forfeit the amount of money they have paid. If a bond has been posted by the defendant, then the money will be forfeited by the bail bond company, as we will discuss further below.
Following an individual's arrest, a court officer or judge will set the bail amount along with any other conditions for her or his release from jail. Some of the factors that are considered that can weigh against bail include risk to the public of additional criminal activity and flight risk. Factors that may be favorable in bail being granted include ties to the community and lack of previous criminal history. The following are potential rulings in a bail hearing:
Release on Own Recognizance: In this case, the defendant signs an agreement promising to return to court and comply with other conditions in exchange for being released from jail.
Personal Bond: Upon signing a bond, the defendant is released. The bond states that she or he will be liable for criminal, and civil in some cases, penalties if she or he fails to appear in court as directed.
Bail Set with the Terms of the Release: The defendant might be released by posting bail in the amount that the court has set, either by obtaining a surety bond from a bail bond company or paying it directly.
Denial of Bail: The court deems that the defendant is too much of a risk to the public or a flight risk.
Often bail is set in an amount that is beyond the financial means of a majority of individuals. In most states, bail bond companies are for-profit businesses that post bail for defendants by charging a nonrefundable fee, normally 10-20 percent of the total bail amount.
A contract is signed by the bail bond. It is called a surety bond, where the bail bond company agrees to be liable for the entire amount of bail if the defendant fails to make their court appearance or forfeits their bail in some other way. Because the bail bond company potentially is responsible to pay a large sum of the money, the company might require to be allowed to monitor the defendant or have them check in regularly. If the defendant fails to make their court appearance, the next step that a bail bond company might take is to hire a bail recovery agent, who is sometimes referred to as a bounty hunter.
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