Bail: An Overview

Bail: An Overview

What is bail?

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.

What is the purpose of bail?

Bail has two purposes:

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

How is bail decided?

The judge or magistrate decides the amount of bail and conditions of release 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.

Do defendants always have to pay bail?

No. 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 the defendant is not considered a danger to the victim or the community, and if he or she has a steady job, roots in the community, or other personal circumstances indicating that they will not flee.

Do defendants have to pay the full bail amount to be released?

Not always. Sometimes a defendant can use a bail bondsman to cover all or part of their bail. 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.

 In Alaska, the amount a person must pay in bail is entirely up to the judge. The Pretrial Enforcement Division will assess defendants to determine the risk of letting them go free on their own accord, sometimes with electronic monitoring and other conditions.

Since the COVID pandemic began, the courts have relaxed the bail requirements greatly and most misdemeanor offenders will not have to pay a cash bail at all.

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

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.

What are conditions of release?

Sometimes bail is conditioned on certain behavior of the defendant. Common conditions of release are:

  • Pretrial Enforcement Division (PED) – The defendant will be assigned a PED offer who will check-in with the defendant as needed or ordered
  • Electronic Monitoring (EM) – the defendant will have to wear an electronic monitor (aka ankle monitor). Some monitors have 24 hr GPS
  • Third Party Custodian (TPC) – a court-approved person will monitor the defendant by being within sight or sound if him/her at all times. If the defendant escapes or breaks their conditions of release, it is the job of the third party to contact PED and/or local police. If the third party does not report violations, they could face criminal charges and a fine up to $10,000. Because the court must approve the third party, there will be a bail hearing to interview the proposed person before the defendant can be released. If the court rejects the third party, the defendant cannot be released; however, they can submit a different person as a potential third party for the court to review
  • House Arrest: The defendant can’t leave their home. The court may grant passes for doctor appointments, work, or other necessary activities
  • Submit to testing: If the crime was related to drugs or alcohol, the court may order that the defendant get tested. The amount of testing varies on the situation.
  • No contact: In almost every violent crime case, the court will order that the defendant cannot contact the victim directly or indirectly.

What if the defendant contacts me?

If the defendant is contacting you, you may report it to the local PED office or the police/troopers. If the defendant sends you texts or emails, be sure to save this evidence.

It is still considered contact if the defendant tries to reach you through a third party. For example, if the defendant asks his/her friend to contact you, they have violated the no contact order.

If the defendant has contacted you in-person and you are in danger, do not hesitate to call 911

What are victims’ rights regarding bail?  

  1. Notification – 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 and take feedback from the victim.
  2. To be heard at the bail hearing: “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.”
  3. To receive a copy of the conditions of release: “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.”
  4. Protection from harm and knowledge about available protection options” “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 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. When the defense is done, the prosecutor will have the chance to ask questions and state whether they oppose the bail proposal or not. The victim is given the chance to speak last. During this time, you have a right to tell the judge how the bail proposal might impact your safety.