Securing Your Release from Detention – A Guide to Bail Procedures

When the reality of incarceration strikes after an arrest, the primary focus is typically securing release as swiftly as possible. This is typically achievable through “posting bail.” Bail consists of money or a money-like security handed over to a court by an accused individual to guarantee their appearance at scheduled court dates. Should the individual fulfill the obligation of attending court hearings, the bail sum is returned. Conversely, a failure to appear can lead to the forfeiture of bail and the issuance of an arrest warrant.

Determining Bail Amounts

The responsibility of setting bail rests with judges. To facilitate quicker releases, jails often utilize predetermined bail schedules detailing set sums for myriad offenses. This enables individuals to swiftly pay their way out of incarceration without delay, provided they can meet the bail schedule’s amount.

The Eighth Amendment of the U.S. Constitution mandates that bail cannot be prohibitively expensive. The intent behind bail is to ensure the individual’s freedom during their trial period rather than for the government to generate revenue or to punish the accused for alleged crimes. Essentially, bail sums should only be as high as necessary to ensure an individual does not abscond prior to the completion of their trial.

Despite the theoretical underpinnings, in practice, bail can be set exorbitantly high for certain cases such as drug-related offenses or sexual assault, effectively detaining the accused for the duration of the trial. Though some argue this pretrial detention contravenes the Constitution, the courts have consistently dismissed this view (the Supreme Court has not made a definitive ruling on the matter).

Should an individual be unable to raise the amount dictated by the bail schedule, a petition for a reduced bail can be made. This is normally addressed during a specialized bail hearing or at the individual’s initial court appearance, often referred to as the arraignment.

Bail Payment Options

The following are accepted methods for posting bail:

• Full payment in cash or check
• Property valuation equivalent to the bail amount
• A bail bond, representing a pledged full bail amount payment
• Conditional waiver of payment assuming court attendance as scheduled (“release on one’s own recognizance” or “O.R.”)

A bail bond is akin to a reserve-held check – it indicates the promise of the accused to show up to court. The acquisition of a bail bond entails paying a non-refundable premium, generally around 10% of the bail’s nominal value.

Though a bail bond might seem financially sensible at first glance, it can be more costly in the long term. Direct bail payments are returned after the legal proceedings (minus any administrative fees), assuming all court appearances are made. However, the 10% premium paid for a bail bond is not recoverable. Moreover, collateral—a financial stake in the defendant’s valuable assets—might also be necessary. The bond agent could liquidate this collateral if the defendant fails to attend the scheduled court date.

Qualifying for Release Without Bail

At times, individuals may be granted release on their own recognizance (“O.R.”). Being released O.R. means the defendant only needs to make a signed pledge to appear in court; no bail money is required.

The request for O.R. release is generally made at the defendant’s first court hearing. If denied, the defendant might then request a reduced bail amount.

Usually, O.R. release is granted to those with substantial community ties that decrease the risk of fleeing. Judges may consider factors such as:

• The defendant having immediate family in the community
• Long-term residency in the community by the defendant
• Employment of the defendant within the community
• A clean criminal record, or any previous minor legal issues occurring far in the past
• A history of the defendant facing charges but always showing up to court

For assistance with bail and related legal advice, do not hesitate to contact The Law Office of Monte J. Robbins, Esq. at 303-355-5148. We are here to navigate you through the complexities of the legal system and advocate for your right to a fair process.