What is bail?
When an alleged crime takes place, the police arrests the suspect and takes him/her into custody. The accused person then has to remain in custody, in jail, till the court hears the case against him/her in order to decide whether he/she is guilty of the crime that has been alleged.
Court cases can take weeks or even months to conclude. Till that time, the accused has to spend time in jail. This might sound reasonable to some but unreasonable to others.
It might seem impractical because what if the accused person is not guilty. What if the accused person did not actually commit the crime. In such a case, he/she would be spending weeks in jail for no reason.
In order to avoid such a harsh and somewhat incorrect treatment, we have a system of bail. Bail is a legal arrangement in which the accused person can get a pre-conditional release from police custody in return for his/her commitment to show up to all court proceedings and any other conditions set by the bail judge.
In order to incentivize the accused person to honor the bail conditions, the bail judge sets a bail amount that needs to be paid by the accused (or his/her relatives) in order to get released.
This bail amount depends on the nature of the alleged crime. It can be a few thousand dollars or hundreds of thousands of dollars.
The bail money is refundable in most cases and it is returned to the accused person once all court proceedings are complete. Note that this refund is made regardless of the final verdict in the matter.
Whether the accused is pronounced as guilty or innocent, the court returns the bail money to the defendant. So, the bail amount is basically a way to make sure that the accused person co-operates with the authorities.
After all, there is a significant amount of money at stake which gets forfeited if the bail conditions are breached in any way.
Can bail be rejected?
Grant of a bail is not always a guaranteed outcome. It can also be rejected under certain situations. The judge who is hearing the bail application analyzes the background of the accused person.
If the accused person has had a history of violent crime, chances of bail go down accordingly. Similarly, if the judge feels that the accused person could be a threat to the community if released on bail, then the bail can get rejected.
A bail can also be turned down if the alleged offense is a non-bailable offense. The penal code or criminal law of the country states clearly as to which offenses are bailable and which ones are not.
Sometimes, a bail gets rejected and the bail money forfeited if bail conditions are violated when the defendant is out on bail.
For example, if a person is out on bail, and if he/she gets arrested for another crime, then the bail money gets forfeited. Bail can also get rejected in case of flight risk.
Flight risk is a risk that the accused person will fly away or flee the country in order to avoid showing up for court proceedings. Flight risk is especially applicable if the accused is a foreign national or a wealthy individual.
So, after a careful evaluation of the nature of the crime and the background of the accused, the bail judge decides whether to grant a bail or not.
Sometimes, the accused person can secure his/her release from jail for agreeing to take a drug test, turning in his/her firearms, or simply by committing to checking-in with a probation officer.
It all depends on the specific circumstances around the case in question. The amount of bail money is also decided by the judge referring to a schedule.
There is something known as a bail schedule which lays out the different bail amounts for the corresponding crimes.
How to pay the bail money?
An accused person has a few different options when making the bail money payment. The most direct and simple way is to make a straight cash or check payment.
Upon making the payment, the court creates a release order and communicates to the defendant the conditions of the bail.
This cash payment gets refunded to the defendant once all court proceedings are over and once it is verified that the defendant has complied with all the bail conditions.
As bail amounts can be anywhere from $10,000 to $300,000, it is quite possible that the accused may not have that much cash on hand to make a direct payment. In such a case, the accused can either submit a property bond or he/she can get a bail bond.
A property bond is a lien that is submitted to the court. It is a lien on a physical property that the accused person owns. The court holds on to this lien till the court proceedings are carried out.
Once the proceedings are concluded, the lien is returned back to the accused, assuming all the conditions of bail have also been honored by the accused person. If the conditions of bail are breached at any point during the court trial, the court has the power to foreclose the property that has been pledged by the accused in order to get the bail money that was set during the bail trial.
A property bond is essentially an asset-backed insurance policy that the court gets from the accused for granting temporary release from jail under bail.
Another option for processing a bail payment is by providing a bail bond. Again, this method is very useful if the defendant is short on cash and cannot make the bail payment in full.
To get a bail bond, either the accused or his/her relatives and friends first approach a bail bondsman or a bail agent.
This person creates a bond and submits it to court underwriting the payment of the bail money in full in case the accused person fails to fulfill any bail conditions. So, the bail agent basically is taking responsibility for the compliant behavior of the accused.
In return for this service, the bail agent gets a fee from the accused. This fee is a fixed percentage of the bail amount, normally around 10 to 20 percent of the total bail amount.
Note that unlike the above two options of cash payment and property bond, the bail bond fee is non-refundable. It is a cost that the defendant has to incur for the facility of not having to pay the full bail amount at one go.
The bail bondsman or agent can also ask the accused (or his/her relatives, if they approached the agent) for some form of collateral.
This kind of arrangement reduces the probability of the accused fleeing away while on bail because at stake is the collateral. If the relative pays the bail agent’s fee or puts up the collateral, the accused person’s relationship with the relative is also at stake and a personal factor like that tends to incentivize compliance with all the bail conditions.
Often times, the bail agent has an insurance policy backing the agent in the event that the accused flees and a payout has to be made.
Thus, bail is a valuable mechanism through which an accused person can temporarily secure release from jail. This allows the person to attend work, earn income, and be with family and friends while the court proceedings take place.
It is especially useful if the accused person turns out to be innocent, as otherwise, that person would be spending time in jail for no reason or fault.