Bail: Getting Out of Jail After an Arrest

Everything you need to know about posting bail or a bail bond.

A person's first thought upon landing in jail is often how to get out and fast. The usual way to do this is to "post bail".

Bail is cash, a bond, or property that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.

How Bail Is Set

Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting for a day or longer to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can often get out of jail quickly by paying the amount set forth in the stationhouse bail schedule.

If a suspect wants to post bail but can't afford the amount required by the bail schedule, the suspect can ask a judge to lower it. Depending on the state's procedures, a request for lowered bail may be made either in a special bail setting hearing or when the suspect appears in court for the first time (usually called the arraignment).

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. Remember: The purpose of bail is to allow the arrested person to remain free until convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep the suspect from fleeing before a case is over.

So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales or rape), knowing that the high bail will effectively keep the suspect in jail until the case is over. Although bail set for this purpose called preventative detention is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).

Conditions of Bail

Bailed-out suspects commonly must comply with "conditions of release." If a suspect violates a condition, a judge may revoke bail and order the suspect re-arrested and returned to jail. Some bail conditions, such as a requirement that a suspect "obey all laws," are common. Other conditions may reflect the crime for which a suspect was arrested. For example, a condition may order a domestic violence suspect not to contact the complaining witness. 

Paying Bail

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").

A bond that costs 10% of the bail amount may sound like a good deal compared to posting cash bail, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. In contrast, a bond seller's fee is nonrefundable. In addition, the bond seller may require "collateral". This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.

Getting Out of Jail Free

Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail.

A defendant commonly requests release on his or her own recognizance at the first court appearance. If the judge denies the request, the defendant 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 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.

More Information

To learn more about bail, and everything else you need to know about criminal law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman (Nolo). If you need a lawyer, you can turn to Nolo's trusted Lawyer Directory, to find a criminal defense attorney in your area.