by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today’s topic is bail and bonds. Diana wrote:
Would you please explain the bail system - how much is paid if a bail bondsman is used, when bail is paid, what happens after verdict, and who keeps the bail money if a suspect fails to make an appearance.
None of us wants to go to jail or deal with the criminal justice system any more than we must. The good news is that, even if you are arrested, you are in most cases not required to sit in jail while you await your trial. You may post a bail, and remain free. The bad news is, the bail might cost quite a bit.
Bail is some form of property or money deposited to a court so that the court will release a criminal suspect from jail. The understanding is that the suspect will return for pretrial appearances and trial or forfeit the bail (and also be guilty of the crime of failure to appear, or subject to criminal contempt). In most cases bail money will be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. If the suspect fails to appear, the court keeps the money.
The purpose of bail is to allow people to continue to live their lives while under suspicion of a crime. The suspect needs to work, contribute to his community, care for his family, and generally function in society.
The Eighth Amendment prohibits excessive bail, but the precise amount of bail required depends on a variety of circumstances including the risk of flight associated with the suspect, the suspect’s criminal history, the nature of the crime, the severity of the crime, the danger the suspect might pose to the public, the suspect’s family relationships, who will assist the suspect in appearing in court, employment status, employment history, and other factors. The point is to assign a bail amount that fits the crime, and will provide a reasonable incentive for the suspect to cooperate with the criminal justice system. Some suspects, such as those accused of crimes punishable by the death penalty, cannot post bail pending trial – they must sit in jail.
Bail is set in different ways by different states and counties. In some places, there is a simple table with standard bail amounts for each crime. In others, there is more wiggle room, and the factors listed above are taken into consideration by a judge at a bail hearing.
After the bail amount is set, the suspect must pay that amount, or sit in jail to await trial. If you have the money to pay the bail, you simply pay and go. But, many criminal suspects cannot afford the bail amount. So, the suspect must engage the services of a bond agent. A bond agent is not employed by Her Majesty, does not carry a license to kill, and does not flirt with Moneypenny. A bond agent is the generic term for an organization that will put up the money needed for your bond in exchange for a fee. The fee is typically 10% of the total bond. So, if bail is set at $100,000, and you have $10,000, you can leave prison that night because the bond agent will guarantee the rest of the money to the court in the event that you flee, or fail to appear in court. The bond agent will need collateral against the money, and so the suspect might offer a mortgage on a house, or title to a car, or some other valuable item such as jewelry.
After your trial, regardless of your guilt or innocence, the bond agent keeps the $10,000 as payment for agreeing to be liable for the total amount of your bond to the court.
In the end, you do not want to learn the bail system from the inside if you can avoid it. Jail is no fun.
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