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What’s ‘bail’ and how do I get it?

October 29, 2011

2. Law, 4. Arrest

What’s ‘bail’ and how do I get it?

The underlying principle of bail is to make the decision to not show up in court at future required times.  Bail is set as early as possible in the criminal process.  The US Constitution recognizes that a government that can toss you in jail and leave you there until trial is not much different than the King of England putting his political enemies in the Tower.  You have a right to bail with very few exceptions.

Let’s rip through some variants.  “$50,000 straight bail.”  You need to put up money, property, or a bond equal to $50,000.  When it comes to property – usually real estate, but it can be cash equivalents like stocks – the court will require a bit more in value to ensure against market-price changes.  Real estate also has the ugly requirement that the court get “first position.”  That means that your mortgage company is going to have to agree to move down the pecking order.  Best of luck with that.

“$50,000 – 10%.”  This variant is the same as above except you only need to put up 10% – $5,000 – to satisfy the bail requirement.

“$50,000 ROR.”  First, this number is a bit high for ROR, but I’m being consistent.  $5,000 is a more common number.  ROR is “release on recognizance.”  No money or property or bond goes up.  You just sign the papers and walk.

In all bail situations, you are promising to appear in court at all future times.  If you don’t, it is possible that the bail is forfeited.  To add insult to injury, they’ll probably also toss you in jail.  It’s common to just get slapped the first time, but that’s wholly up to the court.

A bail bond, mentioned a few times, is like an insurance policy.  You pay cash for about 7% of the bail amount – for $50,000 that would be $3,500 – and you pledge assets to the bondsman to cover the bail amount.  The difference between those assets and the ones a court will accept is that a bondsman is the looser.  He’ll accept cars, for example.  If you skip out, the bondsman has to pay your bail to the court – $50,000 – and then he goes after you.

There’s one final distinction on the ways that you post bail.  Putting cash or property up to the court, if possible, is the preferred way.  When your appearances are done, you get it all back less a small administrative fee.  That 7% you ponied up to the bondsman is exactly like an insurance premium – it’s gone.

When bail is set – usually at a Preliminary Arraignment within 24 hours of getting busted – you want to push your ties to the community.  Family, job, etc.  You have more to lose by bolting than staying.  If you’re considered a flight risk, a danger to the community, or a danger to witnesses, bail can be denied.  This courtroom issue is actually one of the few that the television program Law & Order does accurately.  Watch a few episodes to hear what defense counsel and the DA say.

The dollar amount at which bail is set is not up for negotiation.  The real key is to get a number and type (ROR, 10%, cash) set so you can then figure out how to satisfy it.  Magistrate Judges (Pennsylvania system) set bail.  They reference your charges on a table.  The bail for your level of charges is set forth in the table.  If they’re not comfortable setting your bail because of your criminal history or some aspect of your case, they most often defer the setting of bail to the trial-level judge.  That’s usually resolved within hours or a day at most, unless you got busted on the weekend.

While in custody, talk to no one about your case.  Everyone – and I mean everyone – should be viewed as a member of the team that will prosecute you or a snitch.

Think about it:  What’s more important to your cellie Billy Bob – your years together of being “good people” or his pleading a felony down to a misdemeanor thereby doing six months instead of six years?  And why the hell is he so inquisitive about your case anyway?  The only case he ever cared about was the next case of beer.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


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