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  • Writer's pictureLauryn Lauderdale

Bail Basics

What is Bail?

Bail is a legal term for the condition upon which a person charged with a crime, a defendant, will be released from custody, pending trial or the resolution of the charges. In general, two types of bail are available: (1) release on bond; and (2) release on conditions.

Release on Bond

A bond is a form of debt security. The defendant’s “debt” is his promise to return to court to face the charges against him; if he fails to do so, then the amount of the bond is forfeited.

There are two types of bonds – unsecured and secured. With an unsecured bond, the defendant is released on his own recognizance or on a bond with a face amount, but will require no cash deposit and no collateral except for the defendant’s signature. A secured bond may be supported by cash, real property, or other collateral:

- A cash bond requires a deposit of cash as collateral to secure the defendant’s release. The judge will announce whether the bail is straight (the required deposit is the whole amount) whether a deposit of some percentage, typically ten or fifteen percent will suffice.

- A real property bond requires someone (the defendant or a family member or a friend) to put up real estate as collateral for the defendant’s release.

- A surety bond requires a signature of a third party (a friend or relative of the defendant, or a bonding company); the judge may also require the third party to post collateral to secure the defendant’s release.

Release on Conditions

If the court is reluctant to release the defendant on bond, or if a bond is not practical (due to a lack of funds or collateral) and the defendant may be released on conditions. Common conditions for release include:

- Travel restrictions, prohibiting the defendant from leaving the state.

- A curfew.

- A requirement that the defendant immediately notify the court of any change in his address or telephone number.

- Electronic monitoring, through the use of an ankle monitor.

- A requirement that the defendant turnover firearms and refrain from possessing any dangerous weapons.

- Drug and alcohol rehabilitation treatment.

- A prohibition against contacting witnesses with the victims.

When Is Bail Set?

After an arrest and processing, the defendant will be taken to court to appear before a judge. In most cases, the bail will be set at or immediately after this initial appearance. This hearing generally occurs within 48 or 72 hours of arrest. However, if the defendant was arrested for minor offense, the arresting law enforcement agency may have discretion set a minimal bail and release the defendant without a trip to the courthouse.

Why Is Bail lmportant?

Aside from the obvious reason of getting out of custody, release on bail is important because it makes it easier for the defense attorney to do his or her job and, therefore improves the odds of the defendant obtaining a favorable outcome in the case. When a defendant is free on bail, he can assist in his defense; and help a lawyer locate witnesses; and meet with his attorney in private to review the evidence against him and develop a defense strategy. In contrast, when a defendant is incarcerated, there is little privacy, even in witness rooms; reviewing evidence, especially and or video tapes, is awkward at best; and, with limited phone access, there are few opportunities to communicate with counsel.

How Is Bail Determined?

Bail is determined at the initial appearance, sometimes called the 4872 Hour Hearing. At the hearing, the judge will set bail with these considerations in mind:

- Can the defendant be trusted to return to court, even if it is almost certain that he will be convicted and incarcerated? Is the defendant a flight risk?

- Can the defendant be trusted to refrain from further criminal activity? If the defendant is released, for the safety of the community at large to be at risk?

- Can the defendant be trusted to leave possible witnesses alone?

- Can the defendant be trusted to abide by any conditions of the lease?

Bail “Do’s” and “Don’ts”

Here are a few practical suggestions to keep in mind as you and/or your loved one navigate the bail process;

1. Do you make sure you understand the consequences of posting a bond.

If you post a cash bond and the defendant fails to return to court, you will forfeit the entire amount of the bond – even if you only paid a percentage of the bond to secure his release. Posting a real property bond exposes you and your family to the possibility that you can lose your home.

2. Do make sure that the defendant understands the consequences of failing to comply with the conditions of his release.

Regardless of how the defendant is released, serious consequences will ensure if he fails to return to court. First, a bench warrant will be issued for his arrest. When he is ultimately brought to court (and he will be), judge is unlikely to release him again prior to trial.

Likewise, if the defendant fails to comply with any of the conditions imposed on his release, then his bail may be revoked. He can be returned custody to await trial. In addition, some bail violations, such as contacting the alleged victim or witnesses, may be criminal offenses in and of themselves, subject to a separate criminal prosecution.

3. Don’t expect to get your money back.

If you post a cash bond, think of it as a gift to your friend or loved one. Do not plan on getting that money back. Bond may be forfeited for failure to appear for future court dates or it may be used to pay the defendant’s fines and court costs.

4. Don’t leave the defendant stranded upon his release.

Before posting bond, make arrangements to pick up the defendant once he is released. He may be released in the middle of the night. Don’t leave him stranded.

5. Do encourage your loved ones to enlist the help of an experienced criminal defense attorney.

A defendant will have a better chance of being released on bail (and of obtaining a favorable

outcome in this case), if you enlist the help of an experienced criminal defense attorney as soon as possible.

Because the bail hearing will take place shortly after your loved ones arrest, the prosecutor and judge won’t know much about him other than the charges against him; his criminal history; whether he has previously been released on bail and then failed to appear; his parole/probation status; and whether other charges are pending. This bare-bones information is not too much in the way of answering the key questions on the judge’s mind about the defendant’s trustworthiness and safety of the community. An experienced criminal defense lawyer can help your loved one make his best case for bail by:

- Interviewing your loved one in gathering relevant information regarding where he lives, where he works, his family situation, and his ties to the community.

- Presenting this information to the judge at the hearing, so that the judge gets a sense of your loved one as a real person, not just another defendant or series of statistics in the court and police records.

- Putting together a creative bail proposal and a set of conditions that the defendant can live with and will satisfy the judge.

Finally, and not insignificantly, a criminal defense lawyer can provide reassurance. When your loved one makes his initial appearance in court, he is likely to be tired and anxious in the unfamiliar environment of the courtroom. Have an experienced criminal defense lawyer at his side to advocate for his interest and speak on his behalf, will be comforting and will let your loved one know he is not alone.

If you have any questions or concerns, please do not hesitate to call us at 334-749-5196.

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