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Bail Proceedings: Background

Bail is an amount of money that a criminal defendant may be ordered to pay before being released from custody pending trial. Its purpose is to ensure a defendant's return at subsequent trial proceedings. Bail is typically determined during a defendant's first appearance in court. A judge or other court officer sets the amount and conditions of bail. At a bail hearing, a judge has three options:

  • Release the defendant on his or her own recognizance or upon an unsecured appearance bond
  • Deny bail to the accused
  • Set terms of bail, including the amount of bail and any special conditions for release

In common usage, bail typically refers to criminal proceedings. However, in rare instances bail may be imposed in civil cases. Civil bail is used to directly or indirectly secure payment of a debt or to secure a performance of a civil duty. For example, bail may be employed in a civil case to arrest someone to prevent them from fleeing to avoid litigation, or it may be used to prevent an unlawful concealment or disposal of assets. The amount of bail set will be based on the probable amount of damages the plaintiff could collect. Sometimes the deposit may be used to pay the judgment to a plaintiff.

Bail law came to the U.S. through English tradition and laws. Even before the adoption of the U.S. Constitution and Bill of Rights, a judiciary act in 1789 guaranteed a right to bail in all noncapital cases. For a person charged with a capital offense (where death is a possible punishment), bail was discretionary, depending upon the seriousness of the offense. The Eighth Amendment to the U.S. Constitution provides, "excessive bail shall not be required." The U.S. Supreme Court has ruled that the Constitution permits holding a defendant without bail pending a criminal trial. No absolute right to bail exists.

Bail is not meant to act as pre-trial punishment or as a fine. Modern bail laws reflect an intentional emphasis on non-monetary methods to ensure a defendant's appearance at trial. This is meant to avoid discrimination against poor defendants.

Bail may or may not be required in misdemeanor cases, depending upon the circumstances and seriousness of the offense. More serious misdemeanor cases and felonies often require a bail determination. Bail may come into play at three stages of a criminal proceeding:

  • During the pretrial period
  • Pending imposition or execution of sentence
  • Pending appeal of a conviction or sentence

If bail is not required, a defendant may be released on his or her own recognizance. Releasing someone on personal recognizance means that the person has promised to show up for trial or other court proceedings, without posting a bond. Release on personal recognizance may be appropriate when a person has ties to the community and has lawful and steady employment. Family status is also taken into account. Before release, a defendant must sign a document promising to appear. Failure to abide by the terms of release on personal recognizance may result in revocation of the privilege, or further criminal charges, including immediate arrest. A defendant released on personal recognizance may be required to abide by certain rules. For example, the defendant may be forbidden from traveling outside of the court's jurisdiction, or may be forbidden from contacting the victim or the victim's family.

A court may also impose an unsecured appearance bond on a criminal defendant. A bond amount is set, but the defendant is not required to post any money. If the defendant fails to appear at subsequent proceedings, or violates any terms of the bond, he or she will be required to pay the full amount of the bond.

According to the Department of Justice's Bureau of Justice statistics, for all defendants charged with state felonies in May 2000 in the 75 most populous counties in the country:

  • 62 percent were released prior to the disposition of their case
  • 38 percent were detained, including 7 percent who were denied bail
  • Of those released, 26 percent were released on their own recognizance
  • 37 percent were released on a commercial surety bond
  • About a third of those released failed to appear for a scheduled appearance, were rearrested for a new offense, or committed a violation that resulted in revocation of the pretrial release
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