Bail or Jail


After a defendant is arrested, he or she is required to appear before a judge or magistrate. At this time, the defendant may request or a judge may set bail for the defendant's release. Bail is cash or a cash equivalent that is given to the court to ensure that he or she will appear in court when ordered. If the defendant appears when he or she was ordered to, bail is refunded. However, if the defendant fails to appear, the court keeps the bail and issues a warrant for his or her arrest.

Forms of Bail

Bail can be cash or can be in a number of different forms. Some examples are:

Determination of Amount of Bail

A judge or magistrate determines the amount of bail that the defendant will be required to post prior to his or her release. The judge takes numerous factors into account including, among other things, the nature of the offense, the dangerousness of the defendant, the defendant's criminal history, and the defendant's risk of flight. The Eighth Amendment of the United States Constitution forbids excessive bail. The amount of bail must be no more than is reasonably necessary to keep him or her from fleeing. However, many judges do impose high bail in particular types of cases to keep the defendant in jail.

How to Pay for Bail

There are two ways to pay bail. The defendant may either pay the full amount or buy a bail bond. A bail bond is a promise that you will appear in court when you are supposed to. The bond seller, known as a bail bondsman in some states, posts a bond with the court, and the court keeps the bond in case you don't show up. A bail bond can usually be purchased for about 10 percent of the amount of the bail. The defendant may also be required to pay the bond seller a nonrefundable premium. Sometimes courts have lists of bond sellers or the defendant could look in the Yellow Pages. Typically, jails and bond sellers do not take credit cards or personal checks.

Released on Defendant's Own Recognizance

Instead of posting bail, the defendant may be released upon his or her own recognizance. The defendant released on his or her own recognizance must sign a promise to show up in court. The court decides whether or not to release the defendant upon his or her own recognizance. The court is more likely to grant a request to be released upon one's own recognizance if the defendant is not likely to flee. Factors that the court looks at to conclude whether to grant a request to be released upon one's own recognizance are:


If the defendant is unable to post bail or be released upon his or her own recognizance or if the crime committed is too severe to warrant the posting of bail, the defendant will be required to remain in jail until trial.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.