Bail Definition

Bail is money or other property deposited with the court to ensure that a person accused of a crime will return to court when required. If the defendant returns for their court appearances as required, the court returns the bail at the end of the case, even if the defendant is convicted. However, if the defendant does not come to court when required or violates their bail conditions, the defendant forfeits the bail.

If you have been arrested and charged with a crime, the best way to secure bail and receive a favorable bail amount and terms is to contact an experienced criminal defense attorney to represent you. An experienced criminal defense lawyer can argue for favorable bail at your arraignment.

What Is Bail?

Following an arrest, an accused person in a criminal case frequently does not stay in jail until their trial. If criminal procedure indicates, they can leave jail via something called bail. 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:

• Flight risk
• Whether you pose a danger to public safety
• The likelihood of you coming to your next scheduled court date

You do not have the right to bail in all circumstances. A judge can determine that you pose a threat to society or are likely to flee and deny you 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 bail amounts. Generally, bail is higher for serious and violent crimes, and less for non-violent offenses such as drug possession. Judges set the amount of money required for bail on factors such as the seriousness of the crime.

Judges can also set conditions of release in addition to bail. This can include prohibiting you from doing certain things, going to certain places, and seeing specific people.

Sometimes, a defendant will be released from jail on their own recognizance. That is when the judge deems the risk they will not appear for court to be minimal and does not have to pay anything.

Understanding Bail

After an arrest, you will be taken to jail. At this point, criminal law makes it clear that 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.

Bail bonds are also an option. A bail bonds company is a company that offers bail services, usually a bail bondsman will pay for your bail along with the promise that you will return.

What Happens if I Can’t Afford Bail?

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 or other real estate as collateral.

The Eighth Amendment to the U.S. Constitution prevents “excessively high bail.” In other words, the sum of money the judge orders 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.

What Happens to Bail Money?

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 use 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 as a result of this forfeiture.

An experienced criminal defense lawyer will not only help you secure bail but also be the person to make sure you are present at all of your required court appearances. That way you can get your bail money returned to you.