You’ll often hear the terms bail and bond being used interchangeably and assume they mean the same thing. The truth is – they don’t. While most people use one in place of the other in normal, everyday conversation, they mean completely different things from a legal standpoint.
If you or a loved one find themselves on the wrong side of the law and end up getting arrested, it’s important to understand what the difference between them is to make an informed decision based on the options available to you. Bail vs bond – what’s the difference? This article explores everything you need to know.
Bail and bail bond both refer to a monetary sum given to a court by a defendant as collateral. It is supposed to ensure that they show up to court for their trial on the appointed date or fulfill any other court-mandated obligation.
When someone “posts bail,” it essentially means that they have paid the collateral required to secure their release from jail. While it is possible for bail to be ordered in civil cases, this article will focus on the term as it is used in criminal cases.
Bond Definition – What Is a Bail Bond?
A bond is a pledge to make good on bail. In such instances, the sum of money used as collateral to secure the release of an arrested individual is not posted by them. Instead, a third-party – usually a bond company – posts the amount on behalf of the defendant at a fee. The bond company is also responsible for making sure that the defendant honors their court appointment, or else they risk losing the money they paid in its entirety.
What Happens After an Arrest?
To understand how bail bonds work, you first need to understand the surrounding circumstances that might warrant one or the other. For this reason, we must explore what happens after an arrest.
When law enforcement officers arrest an individual for an alleged crime and take them into custody, they will first go through the regular steps of fingerprinting, getting their mugshot taken, and basically being processed into the system.
Once that takes place, a significant amount of time might pass between the date of the initial arrest and the date they’re arraigned in court to answer for the charges being leveled against them. This period could be anywhere between a few days to several months.
The question then becomes – what happens during this period in limbo?
That’s where bail or bond comes into play. A judge has to decide whether the arrested individual should remain in jail and wait until their court date to determine their guilt or innocence, or if they can leave and go about their business until their court date. When making this decision, there are several factors the judge has to take into consideration, including:
- The safety and wellbeing of the community should the defendant be released from custody
- If the individual in question poses a flight risk
- Whether or not they have a criminal history
If the judge determines that the defendant can be trusted to leave jail and show up to court on the appointed trial date, they’ll be allowed to post bail and leave.
Types of Bail Bonds
There are seven different types of bail bonds. Here’s an overview of each of them and their associated requirements.
What is a surety bond? This is the most standard form of bail bonds and is usually given through bail bonds companies. The reason for this is simple. In most cases, the bail amount is usually set at a dollar value that’s much higher than the defendant’s budget. As a result, the average person would ordinarily not be able to foot this cost on their own.
Individuals who can’t pay the bail amount set by the court turn to bail bonds companies to purchase a surety bond from them. They then pay back the amount over an agreed-upon period. Bail bonds companies usually charge defendants a 10% fee of the total bail amount over and above the bail figure itself.
Property bonds are exactly what they sound like – bonds that use property assets as collateral. It’s important to mention at this point that not all US states accept property bonds. It is, therefore, important to familiarize yourself with the laws in your state to find out whether or not this form of bond is permissible.
The most commonly accepted form of property bond uses real estate as collateral. It is not the only kind of collateral used, though.
When obtaining a property bond, keep in mind that full rights to the property must be surrendered. The downside to this type of bond is the time it takes to process all the required paperwork and inspections, which can take several weeks at a time.
Cash bail refers to a bail bond that’s fully paid for in cash. If the defendant has some extra funds they don’t mind tying up in bail money, they can post cash bail themselves. Once they appear at all the court appointments right up to the conclusion of the case, the court will refund the bond amount. It is by far the easiest and most convenient option since the defendant doesn’t lose any money in the long run.
Can You Pay Your Own Bail?
Yes, provided that you can pay the entire amount upfront at the time of the arrest. Keep in mind that you would be the sole cosigner to the amount. This is only an option when posting cash bail.
Federal Bail Bonds
These are essentially bail bonds posted for federal offenses. They are often the most expensive and most difficult to obtain compared to bonds for state-level offenses.
Immigration Bail Bonds
These are special types of bail bonds that exist for non-US nationals who commit crimes within US borders. An immigration bail bond has a very strict set of requirements and is often quite complicated and extremely difficult to secure. The process of getting this type of bail also takes quite a bit of time to complete.
This is not a bail bond in the strict sense of the word. A citation release is a type of discharge that is accorded to an individual who received a citation for an offense (usually traffic-related) but was not taken into police custody. A defendant cannot apply for this type of bond on their own. It is usually left to the discretion of the citing officer to decide whether or not the defendant can receive a citation release.
The different types of bail bonds outlined so far have some sort of monetary component attached to them. A recognizance release is an exception. In this instance, the defendant is released on their recognizance. They are not required to pay any money as collateral to secure their release. Similar to a citation release, whether or not a defendant is granted this type of bail bond is left up to the arresting officer’s discretion.
How Is Bail Set?
Now that you have a basic understanding of the different types of bail that exist, the next logical question would be – who sets bail, and how is it set?
A judge is responsible for setting bail. That said, most arrested individuals are eager to get out of jail as soon as possible. Because of the sheer volume of people in jail at any given time, it is not feasible to get every single one of them before a judge for a bail hearing. If that were the case, people would have to wait several days to get released.
For this reason, most jails have a standard bail schedule that specifies the bail amount for common crimes. The arrested person simply has to pay the amount set forth, and they can get out of jail quickly.
If an individual finds the amount set on the bail schedule to be too high, they can request for a special bail hearing to request the presiding judge to lower it. They can also file their request during their arraignment.
Some jurisdictions use bail algorithms to set the bail amount. Information about the arrested individual, such as their age and criminal past, is entered into a program. The system processes this information and generates a score that translates to the risk level of the defendant failing to appear in court or committing another crime. The bail amount is set based on this score.
What Is Bail Jumping?
Many people believe that failing to appear in court after being released on bail simply results in forfeiting the bond. This act is known as bail jumping, and the repercussions are not as straightforward as you might believe.
Bail jumping may result in not just losing the bail money; it can be charged as a separate crime altogether. Even if a defendant believes that they are innocent of the underlying charge, this cannot be used as a defense for jumping bail. Depending on the state you reside in, it can be charged as a felony or misdemeanor offense. Some states only charge a defendant with bail jumping if their underlying charge is a felony.
To be charged with bail jumping, the prosecution has to prove that the defendant intentionally missed their court appearance. To defend against these charges, the defendant would have to prove that they were not served with proper notice of the court date.
What Happens if You Violate Bail Conditions?
Violating the conditions set forth in your bail could be anything from failing to show up on your court-appointed date to committing another crime and getting arrested for it. If a defendant violates bail conditions, a bounty will be set on them, after which a bounty hunter will embark on a mission to find them. Once they do, they’ll likely be arrested, taken into custody, and their bail revoked. The money that had been paid as bail will be forfeited at that point.
What Happens to Bail Money?
One of the most frequently asked questions we get is – Do you get bail money back? If not, where does it go? There’s a lot that goes on behind the scenes.
If you don’t violate the conditions of your bail, the court system, through the county sheriff to whom your case is assigned, holds on to the cash. The amount will be returned to you in a few weeks once you’re exonerated of the charges leveled against you. The amount will be less administrative and statutory fees.
Remember, bail is essentially a means – a form of collateral, if you will – of getting you to return to court on the appointed dates and answer to your charges. If you don’t show up to court on any of the dates you’re supposed to, you forfeit the amount, and an arrest warrant against you is issued.
How to Bail Someone Out of Jail
Getting a phone call from a friend or family member in jail informing you of their arrest isn’t fun. Worse still, they’re now asking you to bail them out, and you have no clue where to begin. How does bail work? Here’s a step-by-step breakdown of what you need to do.
Gather Critical Information
When most people get that unexpected phone call from the local jail, they get so flustered that they end up forgetting to ask what the bail amount is. If the person is calling before their initial arraignment, you may have to wait until the hearing to find out how much the bail is or if they’re entitled to bail at all.
Also, find out what specific charges they’re facing, where they’re being detained, and basic personal information about them that you might not be aware of, such as their date of birth, full names, etc.
Contact a Bail Bondsman
Once you’ve obtained all the necessary details, get in touch with a local bail bondsman and give them all the information about the situation your friend or loved one is in. The bail bondsman will then inform you of all the available options. Most people tend to go with surety bonds.
Pay a Portion of the Bail
Surety bonds usually require an individual to pay a certain percentage of the bail amount. You’ll need to remit this money and fill out some paperwork before the bail bondsman can arrange for the release of your loved one.
Go to the Jail
Once you’ve paid the required amount, the bail bondsman will handle everything involved in securing your friend or loved one’s release. Nonetheless, you should still go to the jail facility where they’re being held since they’ll likely need a ride home. Then, talk to them about refunding the surety bond amount you paid or, at the very least, the importance of not violating the terms of their bail.
Do you need more legal advice on how to navigate criminal charges? Have legal questions? Chat online with an available Laws101 attorney.