Bail is a procedure by which a Judge or a Magistrate sets at liberty one who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner's later appearance in court for further proceedings. Release from custody is ordinarily affected by posting a sum of money, or a bond, although originally bail included the delivery of other forms of property, such as title to real estate. The principal use of bail in modern legal systems is to secure the freedom, pending trial, of one arrested and charged with a criminal offense.
The purposes of bail pending trial in criminal cases are to avoid inflicting punishment upon an innocent person (who may be acquitted at trial) and to encourage the unhampered preparation of his defense.
The amount of bail is generally set in relation to the gravity of the offense charged, although some magistrates take into account other factors, such as the strength of the evidence, the character of the accused, and his financial ability to secure bail. Failure to consider financial ability has generated much controversy in recent years, for bail requirements may discriminate against poor people and certain minority groups who are thus deprived of an equal opportunity to secure their freedom pending trial. Some courts now give special consideration to indigent accused persons who, because of their community standing and past history, are considered likely to appear in court. A few jurisdictions make it a separate criminal offense to forfeit bail instead of appearing as required.
How does bail work?
When an individual is arrested for a crime, typically that person will be taken to a local law enforcement station for booking, prior to incarceration in a station lockup or county jail. Once arrested and booked, the defendant has several options for release pending the conclusion of his or her case. Bail is designed to guarantee the appearance of a defendant in court at the time the judge directs.
What are the release options if someone is arrested?
There are five basic release options available. The five options are:
Cash Bail - Cash bail means a person must give the court the total amount of the bail in cash. The cash will be held by the court until the defendant appears to all of his/her court cases and the case is concluded. Full cash bonds provide a powerful incentive for the defendant to appear in court. If the defendant appears for all of his/her scheduled court appearances, the cash bail should be returned in full.
Surety Bond - An alternative to cash bail is a surety bond. This process involves a contractual undertaking guaranteed by an admitted insurance company having adequate assets to satisfy the face value of the bond. The bail agent guarantees to the court that they will pay the bond forfeiture if a defendant fails to appear for their scheduled court appearances. The bail agent’s guarantee is made through a surety company and/or by pledging property owned by the bail agent.
For this service, the defendant is charged a premium. Prior to the posting of the surety bond, the defendant, friend or relative must contact a licensed bail agent. Once a bail agent is contacted, an interview or appointment will be immediately scheduled.
By involving the family and friends of a defendant cosigning the bond, as well as through the acceptance of collateral, the bail agent can be reasonably assured that the defendant released on a surety bond will appear to all of his/her court appearances.
After this procedure is completed, the bail agent will post a bond for the full bail amount, financially guaranteeing the defendants return to court as scheduled.
With money on the line, the bail agent has a financial interest in supervising bailees, and ensuring that they appear in court each end every time the court orders them to appear. If the defendant does not appear in court (skips), the bail agent has time and the financial incentive to find the defendant and bring him/her to court.
Property Bond - In rare cases an individual may be released by posting a property bond with the court. With a property bond, the court records a lien on the property to secure the bail amount. If the defendant fails to appear in court as scheduled, the court may foreclose on the property to obtain the forfeited bail amount.
Release on Personal (Own) Recognizance (P.R.) - Another method of release, pending trial, is through a county or law enforcement administered pre-trial release program. Usually, the employees of these programs interview defendants in custody and make recommendations to the court regarding the release of these individuals on their own recognizance (i.e., without any financial security to insure the defendants return).
The interview process is often conducted over the telephone, usually with little inquiry into the defendant’s background. The interview process attempts to determine whether the detainee is likely to appear in court. There is usually no verification of information provided by the defendant. Since no money, property or bond is posted to secure the defendants appearance in court, he/she faces no personal economic hardship from the conscious decision not to appear in court.
Release on Citation (Cite Out) - This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he/she must appear in court at an appointed court date.
The "Cite Out" usually occurs immediately after an individual is arrested. As a consequence of the failure to follow complete booking procedures, the true identity and background of most individuals released on citation is never established. This results in the release of numerous arrestees who may have outstanding bench warrants pending or who may present a significant danger to society.
Accordingly, in those cases involving "Cite Outs", the arrestee may never be placed in custody. Like the Own Recognizance (O.R.) release, the defendant’s appearance in court depends exclusively on the integrity of the defendant voluntarily returning to court as ordered by the court.
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