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Bail – showing the way out

Bail – showing the way out of an arrest scenario

Following an arrest (for whatever crime) the accused is taken into custody and jailed. He then appears before a judge who decides either to detain him further to facilitate custodial interrogation or to grant bail. Obviously, as far as the accused is concerned, getting out of jail would be his first priority, and bail is one option.

What we understand by bail

Bail is a mechanism through which the accused is freed on the condition that he makes himself available for future hearings as and when dates are decided by the court and the accused will cooperate with the court in all matters till final resolution of the case. Bail is usually backed by a cash payment or bond and property collateral, or sometimes all three. If the defendant absconds or fails to turn up for further hearings, the judge can confiscate the bail cash deposit or security, and then issue a warrant for the defendant’s arrest.

The process of approving bail

It is the judge who decides whether or not to approve bail, and the defendant gets an opportunity to present his arguments in the court hearing that is arranged shortly after the arrest. Bail affords protection to the accused and protects him from being unduly harassed by law enforcement authorities through custodial interrogation. Bail frees the accused so that he can resume his normal life while assuring the court of his continued cooperation. In bail the judge specifies an amount that is usually predetermined (suiting the crime and seriousness) and the defendant is freed on his paying that amount in court.

Sometimes the defendant may not be financially strong enough to afford huge bail payments. In such cases he can request the judge to lower the bail amount and a final decision is usually taken in the first or subsequent hearing or arraignment as it is called.


Determining the amount of bail

The whole purpose of bail is to allow the accused, who is under suspicion of having committed a crime, to remain free till such time the charges are ultimately proved in court. The bail amount, if deposited fully in cash, is ultimately refundable if the defendant attends all hearings and satisfies all court formalities, and the amount is not taken to fill the coffers of the government. The constitution specifically stipulates that bail should not be excessive. In the fairness of things judges usually are guided by the bail schedule, a listing of amounts that can be set as bail for various crimes. In practice sometimes judges set outrageously high bail amounts with the intention of leveraging the unaffordability of bail to keep the accused in lock up till progress is made and the case is decided. The judge might do this if he perceives that the accused poses a danger to society if freed on bail or the accused might intimidate witnesses and tamper with the evidence. Setting higher bail amounts is not unconstitutional as ruled by the U.S. Supreme Court.

Stipulating conditions along with the bail approval

The judge can stipulate conditions known as conditions of release whereby the accused is directed to abide by the terms of his release. This may include surrendering the passport to prevent him from moving out of the country, or a warning that he cannot contact the victim or an associate (as in domestic violence) or barring entry (as in willful trespassing) into a property without court approval, besides directing the accused to obey every law. Violation of any condition can provoke the court to recall the bail leading to the arrest of the accused and his subsequent incarceration.

The method of paying the bail amount

The defendant is allowed to pay the bail amount in the following manner:

  • By depositing the full bail amount in cash in court.
  • By offering collateral of his property for an amount equal to (or more than) the bail amount.
  • By tabling a bond covering the full amount of bail, but effectively paying only 10% of the stipulated amount.
  • By seeking a waiver of the bail payment in lieu of an undertaking that the accused will appear in all subsequent hearings till the case is finally decided. This is usually referred to as his “own recognizance”.

Defendants may feel that it would be a better deal to pay up 10% of the bail in lieu of depositing the full amount in cash, but securing the bond may cost him more in the long run. When full bail is posted in cash the accused gets the entire amount refunded to him when he satisfies all bail conditions and the case is finally decided. The point to remember is that the fee payable to the bail bondsman is not refundable. Besides, the bail bondsman may take collateral for furnishing the bond. The bondsman thus retains a financial stake in the defendant’s property till the bail conditions are fulfilled, and the property will be forfeited to the bail bondsman if the accused fails to adhere to the court’s conditions.

Being freed from custody

As we mentioned earlier, the defendant can seek a waiver of bail in exchange for submitting an undertaking (own recognizance or O.R.) to adhere to bail conditions. In such cases the accused simply signs a promissory paper saying he will attend hearings as and when dates are decided by the court. If O.R. is denied in the first hearing the accused can request for setting a smaller or more affordable bail amount. The O.R. is usually approved by the judge when the judge is fully satisfied that the accused has stable ties to his community or has a permanent job and is unlikely to flee from hearings.

There are many factors that the judge may take into consideration before approving O.R.:

    • The accused has a family and family members are well settled in the community.
    • The accused is known to have stayed in the community for a longer time period and has no stake in fleeing.
    • The accused is permanently employed and is unlikely to sacrifice his job and flee the community.
    • The accused has an unblemished record and has not committed any prior crime, or a crime might have occurred many years prior to the hearing and may not impact his commitment to attend the hearings.

Bail, though it guarantees immediate release and freedom from incarceration, is a serious commitment and failure to adhere to the conditions set by the judge can lead to the accused’s re-arrest and forfeiture of bail amount and/ or property offered as collateral.

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