Bail and bonds what do I need to know?

Recently on our legal forum a user asked, “My brother was arrested for stealing a car. It’s likely the judge will release him on bail. I don’t really understand the process. Can you tell me what I need to know so I can best help him?”

What is Bail?

In many criminal cases, after a suspect has been arrested and charged with a crime, the judge will allow a defendant to be released on bail. Under this arrangement, the defendant agrees to show up for all scheduled court appearances. In exchange for their release and as surety that they will actually appear, the court requires the defendant to pay bail.

For example, a judge may set bail at $20,000. If the defendant pays the bail amount they are released from jail until their first trial date. If they do not appear for trial all of their money is forfeited to the court. If they do appear, however, the court will return the bail amount, regardless of whether or not they are ultimately convicted of the criminal offense.

What is the difference between bail and bond?

Unfortunately, many criminal defendants don’t have $1,000 to pay for bail, much less $20,000. If a defendant is released on bail but does not have the money to pay the bail they will have to contact a bail bondsman to put up the money for them.

To hire a bail bondsman, however, the bail bondsman will require a certain percentage of the money be paid (i.e. 10%). This money is referred to as a bond premium and is charged for incurring the risk and hassle of loaning money, much like interest is paid on a traditional loan. This bond premium is considered no-refundable, which means it will not be repaid even if you appear at all of the scheduled hearings and you are ultimately found not guilty of any crimes.

If you have hired a bail bondsman and they have paid the bail and you fail to appear in court not only will the judge automatically issue a bench warrant for your arrest, a bounty hunter can also be sent to locate you. Additionally, the bail bondman will also have the right to keep not only the premium paid for the bond but also any assets which were used to collateralize the loan.

How does the court determine the bail amount?

The method for determining bail can differ by state and by court. In fact, while some courts may have substantial leeway to determine the bail amount, other courts will set bail after evaluating several factors.

For example, a judge may decide on a lower bail amount if they determine you are not a flight risk, you have a good, stable job, you have relatives in the area, and you have not previously be charged with a crime. Other defendants who have multiple offenses, who have few family ties in the area, or who are not gainfully employed may be considered a higher risk for flight and may have a higher bail or may be held without bail.

If I post the bail or sign the bail bond contract how am I responsible?

Before agreeing to post bail or sign a bail contract it’s imperative that you understand your responsibilities. Most importantly, if the defendant does not return to court not only will you forfeit the bail premium, you will also have to pay the entire amount of bail set by the court. While this might simply mean you write a check for the entire amount, if you don’t have the money the bail company may also have the legal right to repossess whatever assets you have used as collateral.

With this in mind, at the very least, if you will want to take steps to ensure that the defendant returns to court for every court appearance.

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