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