What is Bail?
Bail is a set amount of money (or property) required to be paid by a defendant for conditional release from custody, with the promise of returning for an appointed court date.
If the defendant does not appear in court the bail money may be forfeited to the court.
The bail amount is set by the court, but many defendants are unable to pay the full amount. To assist with payment of bail, dependents may use bail bonds in lieu of the full bail amount, typically posted by a bail bondsman.
How is Bail Set?
Bail is typically set by the presiding judge in a case against the defendant after the defendant's first court appearance. Judges typically adhere to standard amounts, depending on the crime, but have leeway to adjust the bail amount depending on the defendant's criminal record, potential 'flight risk', or circumstances of the individual case.
What is a Bail Bond?
A bail bond is a type of surety bond that helps guarantee that the defendant will return to court for trial. Bail bonds are a promise from a bail bondsman or bail agent to pay the full bail amount to the court should the defendant fail to appear for a future court date.
An agreement is consigned by the defendant and bail bond firm, guaranteeing payment, and the defendant is charged a fee for this service (typically 10% of the total bail amount). Some states regulate only an 8% maximum on bail bond fees, but there may also be other fees associated with the bail bond service.
Note: The commercial bail bond system is only available in the United States and the Philippines.
How do Bail Bonds Work?
Bail bonds are an option for criminal defendants as part of the bail process. A defendant receives a bail hearing (or arraignment) before a judge. The judge will set the amount of bail, at her discretion, based on the seriousness of the crime, the history of the defendant, or other specific factors of the case.
For violent crimes, or in the case of a 'flight risk', the judge may set the bail amount at an amount so exorbitant that no bonding company would be willing to guarantee the amount. In some cases, bail will be denied altogether.
If a defendant cannot afford bail, or find a bail bondsman to guarantee the bail amount, the defendant will remain incarcerated until trial.
Note: Defendants who are foreign nationals, or who present a threat to the safety of any potential witnesses, will likely be held without bail – or required to pay a very significant amount.
Bail amounts vary by case, with misdemeanors carrying a bail amount as low as $500, while felony cases may see a bail amount of $20,000 (or more). Bail amounts for violent crimes and other high-profile criminal acts have seen bail amounts above $1,000,000.
Once the judge sets bail, the defendant may remain in jail, arrange for a bail bond, or pay the bail amount in full themselves. The defendant may also be able to provide collateral to post bail.
If the defendant chooses to go with a bail bond, a bail bondsman will provide a written agreement to the court that promises that the bonding company will pay the full amount of the bail if the defendant does not appear at the scheduled court date.
The defendant may also be required to provide proof of creditworthiness or put up additional collateral (such as the deed to a house, a car, or jewelry) to secure the bond. Associates of the defendant, such as relatives, can provide collateral as well – such as a lien on a property.
Once the court date passes, if the defendant appears in court as scheduled, the bail bond is waived, and the bail bondsman will not have to pay for the bail amount. In return for their service, the bail bond firm receives a percentage of the bail bond amount pledges, which is usually from 8% - 10% of the total bail amount.
If the defendant does not appear in court, the bail bondsman is on the hook for the entire bail amount as part of the bail bond agreement.
Bail Bond Example
Here's an example of using a bail bond:
Shaun is arrested, and during his bail hearing, the judge sets bail for $1 million. Shaun does not have the funds to post bail, so he hires a bail bond firm to post a $1 million bail bond for him. In return, Shaun pays the bail bond company a $100,000 fee for their service. This $100,000 is paid up front, and Shaun is released on bail.
The bail bondsman also wants Shaun to put up collateral to cover the remaining $900,000, so Shaun offers the deed to his $900,000 house to cover the costs in case he does not show up in court. This gives the bail bondsman surety that his bond will be fully covered should Shaun not appear at his scheduled court date(s).
If Shaun appears in court at the scheduled times, at the end of the trial (no matter the outcome), the bond is dissolved, Shaun's deed to his house is returned, and the bail bond firm keeps the $100,000 as payment for the bail bond service.
If Shaun decides to flee, and does not appear at his scheduled court date(s), the bail bondsman would be required to pay the full $1 million bail amount, and would use Shaun's cash and collateral to cover the costs.