Understanding Bail

What is bail and how does it work?

Bail is the amount of money or bond defendants must post with a court clerk to be released from custody pending their trial. Bail is not a fine and not a punishment. Defendants have the right to be presumed innocent unless and until convicted of a crime.

Bail is meant to ensure that defendants will appear for trial and all pre-trial hearings at which their presence is required.

If a bail bondsman posts the bail, he or she will charge the defendant a premium, usually 10 percent of the bond’s amount, and will require the balance to be secured by the defendant who may be asked to assign or pledge property to the bail bondsman. (In many jurisdictions bail bondsmen are becoming obsolete because courts release defendants upon their payment of 10 percent of the bail to the court.)

If the defendant fails to appear for court or violates their conditions of release, the bail or bond that has been posted may be forfeited to the court. This is to penalize the defendant as well as to compensate the state for the added expense of searching for and re-arresting the fugitive defendant.

The judge or magistrate decides the amount of bail by weighing many factors:

• the risk of the defendant fleeing,
• the type of crime alleged,
• the “dangerousness” of defendants, and
• the safety of the community.

Sometimes bail is conditioned on certain behavior of the defendant – for example, that he or she have no contact with the alleged victim. A judge may consider a request to reduce a defendant’s bail at the initial arraignment or at a bail hearing scheduled at a later time.

The judge or magistrate may release defendants on their own recognizance (without a payment of money) on the promise that they will appear for all hearings and for trial. This is usually done if defendants have a steady job, roots in the community, or other personal circumstances indicating that they will not flee.

What if the defendant escapes, doesn’t show up to their hearings, or violates their bail in any other way?

 If the arrested person doesn’t appear in court as scheduled, or doesn’t comply with the orders of the court, the person may be re-arrested and also charged with additional crimes such as “Failure to Appear” or “Violation of Conditions of Release.” Also, any bail paid may be kept by the court. If the full amount of the bail was paid to the court, that amount may be kept by the court. If only a percentage of the amount was paid, the percentage may be kept by the court and the person who paid the initial amount may be required to pay the remaining unsecured portion to the court. If the bond was fully unsecured, then the person may be required to pay the pledged amount of the bond.

What are victims’ rights regarding bail?

Victims have a right to be notified of a bail hearing. Most of the time, the victim will receive a call from the victim-witness paralegal a day or so before the bail hearing. The paralegal will review the proposal with the victim.

Victims have a right to address the court at the bail hearing. Courts must consider the victim’s comments in making the decision to release a defendant in domestic violence and sexual assault cases.

Victim safety should be specifically considered before releasing the accused in stalking non-domestic violence, domestic violence, and sexual assault cases.

Victims have the right to receive a cancellation notice when a bail hearing or court proceeding in which the victim has been subpoenaed to testify has been called off.

Victims have the right to receive a copy of the conditions of release when a prisoner charged with a domestic violence offense is released from custody from a correctional facility or other arresting authority.

An automated phone service called VINE is supposed to provide a victim notice when there is a change in status of their offender, for example, if they are released on bail. Victims can also check VINE to receive to receive the latest status reports for their offender.

Victims have the right to protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts. They also have the right to know what types of protection are available, including protection orders, assistance in obtaining personal belongs, medical treatment or transportation to a safe home or shelter.

What else is there to know about bail?

Bail can be complicated to understand. Often victims will see or hear words like “performance,” “appearance” and “cash/corporate.” Let’s break it down a little bit.

Bail is set for two separate purposes:

• Performance – to ensure the accused abides by their bail conditions
• Appearance – to ensure the accused will attend their scheduled hearings.

For example, an accused murderer’s bail is set at $250,000 cash performance and $100,000 cash appearance, for a total bail amount of $350,000.

• • • If the defendant were to get out on bail and violate his or her conditions of release, in theory, that $250,000 is forfeited to the court. In practice, that doesn’t always happen.
    • If the defendant were to be released on bail and not attend their court hearings, then, in theory, the $100,000 would be forfeited

There are a variety of ways that a person can be monitored while out of on bail.

• On their “own recognizance” (often abbreviated as OR in Courtview). This means they are not monitored in any way
• Pretrial Enforcement – abbreviated as “PED”
• Electronic Monitoring – abbreviated as “PED EM”. This could mean:
  • They have an ankle monitor with exclusion zones. Often the victim’s home and 500 or1000 feet around the home are exclusion zones. Sometimes this also includes the victim’s place of work, school, businesses, etcetera. Each case can be tailored specifically to the situation and details of the crime
  • May be under house arrest and on an ankle monitor. This means the accused wouldn’t be able to leave their home. Defendants can request passes for work, appointments, grocery shopping, etcetera.
• Third-Party Custodian (abbreviated as “TPC” in Courtview) – this means that another person, approved by the court, agrees to keep full sight/sound on the defendant.
  • The court will hold a bail hearing and question the proposed third party to ensure they are an appropriate person to monitor the defendant
  • If the third party is approved, then the defendant can be released under supervision of that person. This may still include things like:
    • monetary bail
    • exclusion zones
    • house arrest with third-party custodian
    • The third-party does not have to prevent/stop the defendant from violating conditions. It is only their job to call-in to pre-trial enforcement and the police to report if the person violated conditions
      • if they don’t call-in violations, the third party can face criminal charges and a fine

What can victims expect to happen at a bail hearing?

• There will probably be a lot of other cases to be heard. Victims may end up waiting up to a few hours for the case to be called.
• Even if the court says they will call the victim, it doesn’t always happen. Victim advocates often recommend that clients proactively call in.
• When the case is called, the accused’s defense attorney will discuss their proposal for bail.
• The prosecution then will have a chance to respond
• Lastly, the judge will ask the victim for their thoughts on the proposal.
• It is the experience of many VFJ advocates that judges appreciate victim input and are good at striking a balance between defendant rights and ensuring the victim’s safety
• If you have any questions about this process, please contact Victims for Justice.

Answers to common questions about bail can be found here.