You may have seen, in movies or on television programs, a scene from a courtroom. The lawyers present their case and then the judge bangs a gavel while announcing his verdict for the day.
The judge is sometimes heard saying the words “and the bail is set at $….”. Bail is a fixed sum of money that a defendant pays to the court in order to get temporarily released from custody.
The court holds the bail money till all proceedings are complete. The bail money can be of different amounts in different cases. It can be $20,000 or as high as $300,000.
Bail money is an important aspect of the legal system because, without the bail, the defendant would have to remain in police custody or in prison until the court finishes its proceedings.
That could take weeks or months. Regardless of whether the defendant is guilty or innocent, he/she would have to stay with the police. In such a case, the defendant cannot work, earn income, be with family, or attend any personal events.
By surrendering a bail amount to the court, the defendant has the incentive to return to the court for future proceedings if he/she wants to get back his/her bail money.
There are different types of bail:
First is the cash bail where money is paid by the defendant in cash (sometimes credit card or checks).
Second is known as a bail bond or a surety bond where the defendant’s friend or relative gets in touch with a bail agent (or bail bondsman) who pledges to pay the full value of the bond (bail amount) if the defendant does not appear in court for future proceedings.
The bail agent gets a 10 percent (or more) fee and receives some form of collateral from the friend/relative. This option is great if the defendant cannot cover the bail because he does not have enough money. All the defendant has to pay is the premium or fee of the bail agent.
The key aspect of the bail bond concept is the relationship between the defendant and his/her friend or relative. Since it is unlikely that the defendant will jeopardize the goodwill and relationship with his/her friend, there is a strong incentive for the defendant to show up in court.
This works because if the defendant does not cooperate, then the friend stands to lose the collateral and the bail agent has to pay the bond amount. The bail agent will not want that to happen and will try and make sure that you show up to court.
The third possibility is handing out a citation. A police officer can hand the accused a written citation asking him/her to appear in court on a certain date. This procedure is not as exhaustive or time-consuming as going to the police station and registering a formal complaint. Low-level offenses fall in this category because it allows the police to focus their time on more serious offenses.
A fourth possibility is a property bond. In this case, the defendant pledges a property to act as a bond. The court gets lien or a legal claim over the property for the bail amount. So, if the defendant fails to show up for any future court proceedings, then the court can foreclose the property to recover the bail amount.
Now that you have a general idea of the different types of bail, the next logical question coming to your mind would be “will I get my money back after court proceedings are done?” The answer to that will depend on what bail option was exercised or order by the court.
Cash bail refund
If the defendant had paid cash for his/her bail, the court will return the bail amount to the defendant provided that he/she showed up to all the court proceedings.
The refund of this money is not influenced by the verdict of the judge. Irrespective of whether the defendant is guilty or innocent, this money gets returned.
The bail is not returned if the defendant fails to show up in court for any of the scheduled proceedings or if the defendant gets arrested again while out on bail.
Bail bond refund
In case of a bail bond, there is no refund because the defendant hasn’t paid any bond amount.
The only money paid is the premium to the bail agent which also acts as his/her fees. That fee is non-refundable.
There is no refund involved in citations because no money is paid. If a citation requires you to pay a fine, you can dispute that in the court.
Some citations involve paying a fine in exchange for not having to appear in court. So, it depends on a case to case basis.
Property bond refund
The court is given lien over the property of a defendant in the case of a property bond. Once the court proceedings are complete and if the defendant showed up in all the proceedings, the lien will get released.
If, however, the defendant does not show up at any of the court proceedings, the court can start the process of foreclosure, in which case defendant stands to lose money.
So are there any drawbacks to this system of bail money?
Not everything is perfect with the system of money bail. For instance, if the bail amount is too high and the premium for a bail bond is also high as a result, low-income families will find it difficult to pay the bail amount or the fee for a bail bond.
That results in certain cases where the accused has to stay in prison even if their crime is unproven.
To tackle this problem, certain states are looking at abolishing the system of bail money and instead come up with a pre-trial assessment system which evaluates the defendant as low, medium, or high risk.
Low-risk persons can be released from police custody. But, racial biases can compromise the effectiveness of such a criminal justice system. Statistics suggest that due to racial biases, people from certain races are more likely to get arrested.
Hence, those races will likely be classified as high risk in a pre-trial assessment system.
There is no perfect answer to this debate. Criminal justice reform is an ongoing process.