Bail is money or other property that is deposited with the court to ensure that the person accused of a crime will return to court when they are required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates their bail conditions, the bail will be forfeited to the court and will not be returned.
Bail money acts as collateral to ensure cooperation with the courts even after you leave jail. A judge sets the amount of bail based on a variety of factors such as:
You do not have the right to bail in all circumstances. A judge can determine that the accused person poses a threat to society or is likely to flee and so deny bail. Nor is the amount set in stone. Judges have some flexibility in determining how much money to set bail at, although some states do have rules to follow in setting the bail amount. Generally, bail is higher for serious and violent crimes, and less for non-violent offenses such as drug possession.
After an arrest you will be taken to jail. At this point, you are not guilty of any crime, but you can still be held for a limited time (called “pre-trial detention”) even if you are not considered dangerous. It is at your initial court appearance that the judge will set bail and any conditions of your release. In some cases, you will not need to post bail to be released, instead you will only have to promise to return for future court dates.
If you cannot afford bail, a bail bond company can pay it on your behalf for a fee or interest on the loan. You may also be able to use property you own to post bail. For example, for high bail amounts you could use your home as collateral.
The Eighth Amendment to the U.S. Constitution prevents “excessively high bail.” Courts have interpreted “excessive” to mean that any bail set higher than what is reasonably needed to ensure governmental interest. In other words, bail is not intended to be a punishment — only to secure your voluntary return to court. Many jurisdictions use formulas to determine bail amounts, although judges can deviate from those in certain situations. If you believe your bail amount is excessive, your attorney can challenge this amount – including to a higher court, if necessary.
However, while the Eighth Amendment protects you from excessively high bail, it does not prevent the court from refusing bail for certain serious crimes considered to be a risk to public safety. These crimes include murder, sex crimes, and other serious felonies.
If you return for all of your court appearances (and meet all other conditions of your release) then the court returns the bail money, even if you are convicted or plead guilty as part of a plea bargain. This is true even if you are sentenced to prison. If you used a bail bond company, however, they will keep any fees they charge.
If you fail to return for your court appearance you will forfeit any bail money. If you used a bond company to post bail the bond company will have the right to collect money from you.
An arrest and conviction can change everything. Fines or time in jail are the immediate concern, but a conviction will also mean a criminal record that can make it harder to find a job and housing for years to come. If you are arrested or learn you are under investigation, the first thing you should do is contact an experienced criminal defense attorney. You can search LawInfo’s legal directory to find a local criminal defense attorney who can protect your rights and help you determine the best way to proceed with mounting a defense.