The drama unfolding in your favorite TV serial shows the defendant seated tensely in a crowded courtroom awaiting judgment as the Judge bangs his gavel and states in a stentorian voice, “Bail is set for $100,000.” One wonders how the accused walked free from the courtroom and how he made good such a huge amount in such a short time, and how did the judge decide that the accused was low risk and not likely to flee the court and the country?
The system of approving bail works by holding money, paid by the accused, as a security deposit till the court proceedings are completed and a final decision is taken by the judge. The judge decides bail after weighing the arguments of the attorney pleading on behalf of the accused and after hearing what the prosecution has to say in the matter. If the judge is satisfied that no danger or threat is posed in freeing the accused, and the accused is in all likelihood willing to cooperate with the court in furthering the case, the accused can walk as a free man upon depositing the bail amount as a cash security or bond.
Bail works on the principle that the accused is presumed to be innocent till the crime and his involvement or criminality is proved. Trial may take place many weeks or months after the arrest and it is unfair to detain the accused in police custody (jail) till the trial date is finalized. During this prolonged period the accused (presumed innocent) will be unable to pursue his work or earn his livelihood. To ease the hardship that incarceration imposes on the accused he is given an opportunity to resume his life till the trial date is decided. Securing bail does not imply that the accused is acquitted of the criminal charges. Bail imposes certain conditions the accused is expected to abide by till the hearings are completed. These are inbuilt safeguards ensuring that the accused cooperates with the court.
Following an arrest the accused is subjected to a battery of tests. He is booked for the crime and his personal details are recorded including his fingerprint and mugshot. An inventory of his personal possessions is taken and the items taken into custody. The police conduct a detailed background probe to unearth past criminal activities of the accused. The accused may also be subjected to chemical tests to ascertain his state of intoxication. One phone call may be permitted to the accused at the time of arrest. Then the accused is confined to a holding cell that he may share with other offenders.
If the crime is less serious bail may be allowed immediately following the arrest and booking. In all other cases the accused will have to bide his time in jail till a hearing is arranged in the regular court where a judge decides whether or not to approve bail and on what terms and at what cost. Usually a bail hearing takes place within 48 hours of the arrest of the accused.
Though the courts may have a schedule of bail amounts predetermined for various crimes, the final bail amount is approved purely at the discretion of the judge. It could be $25,000 for perjury (misleading the court) or $100,000 or more for heinous offences such as murder, kidnapping or rape.
Past criminal record or failure to attend hearings in previous crimes or the stake of the accused in his community are some of the issues that a judge considers before approving or rejecting bail. There are instances where bail was waived by the judge citing special circumstances.
The various types of bail that may be approved by the judge
Broadly there are five different categories of bail that a judge may decide after weighing the arguments of the defense and after ascertaining the views of the prosecution:
In this process the accused is allowed to remit the full bail amount in cash or through check or credit card.
When the accused cannot afford the bail amount he can resort to furnishing a bail bond. This is accomplished through the services of a bail bondsman. Such bondsmen or companies normally have their operations underwritten by surety companies that function like insurance firms. The bail bondsman undertakes to remit the full bail amount in case the accused fails to appear in subsequent hearings or fails to abide by the conditions set for bail.
In exchange for furnishing the bail bond to the court, the bail bondsman secures some collateral in the form of the home, personal possessions or jewelry of the accused. Since a friend or family member may be involved in completing the formalities on behalf of the jailed accused, the bail bondsman will feel reassured that there is another party that can be held accountable for the cooperation solicited from the accused. In the rare event that the accused disappears or fails to turn up for hearings, the bail bondsman may take over the collateral for recovering the bail amount he is liable to pay the court. In some states commercial bail bonding is treated as illegal so you have to check this out before proceeding with your bail application.
In some cases more serious offenders will be at large and the police officer might not take the trouble of arresting and booking the accused taking into consideration the fact that he may have a smaller or insignificant role in the crime. In these instances the officer simply issues a citation stating that the accused must appear in court when asked to do so.
A judge may decide against imposing bail provisions and let the accused go free of his own recognizance. Basically this implies that the accused may have been involved in a nonviolent crime, less serious in nature, and releasing the accused might not pose a threat to the investigation or the witnesses. Besides, the judge may be satisfied that such individuals may show a more cooperative attitude in attending subsequent hearings.
When the bail amount is unaffordable to the accused he may agree to submit a property bond offering personal property as collateral security. In such cases the court marks a lien (legal claim) on the property to the extent of the bail amount decided for the accused. In the event that the accused doesn’t cooperate in following the court’s conditions, the court can foreclose the property to recover the bail amount.
Just like any other legitimate business concern the bail bondman or bail bonding company will be a licensed operator with a valid ID. The premium payable for availing their services will be around 10% of the bail amount along with some additional expenses. Usually the bail bondsmen will be in a position to show you a list of certified expenses. They are also obliged to give you signed receipts for all payments you make and hand you copies of all documents they process. They may also offer attractive finance options for raising the bail amount but these offers should be treated with the same caution extended to bank loans and one should not avail more loan than one has the capacity to repay.
Technically speaking the bail bondsman is responsible for the good behavior and cooperation of the accused and has to ensure that the accused will testify in court when called upon to do so. If the accused fails to appear in court it is also seen as a failure on the part of the bondsman too. So you shouldn’t be surprised when the bondsman asks for your collateral to secure his bond commitment to the court.
Bail is often the only via media for the accused to be freed from incarceration. Even though it imposes a financial burden in the short term on the defendant and his family, it is well worth the effort because freedom is vital to the accused for pursuing his job or other vocation. The accused can also use his freedom to consult a good lawyer who can press for dismissal of the case through effective arguments.