Get Out of Jail
Bail / Bond
The most common way to get out of jail before trial is to post bail or bond. The terms "bail" and "bond" are often used interchangeably, but they're different pieces of the same system. Bail is the money or other value that must be posted for a person charged with a crime to get out of jail until the trial.
Judges are responsible for setting bail, and the United States Constitution prohibits "excessive bail". In many cases, courts produce standard bail schedules which are posted at the jail. This allows a criminal defendant to post bond without waiting to appear in court and have bail set.
Reduction of Bail
If the defendant can't raise the amount of bail specified, a criminal defense attorney can petition the court to reduce his bail, or even to release him on his own recognizance. That may occur at the arraignment, or the defendant may be required to request a separate hearing on the reduction of bail.
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In considering the appropriate bail amount, courts may consider such things as the crime in question, the potential penalties, the defendant's ties to the community, whether or not the defendant is employed, and the defendant's history of appearing as scheduled in any other court proceedings. All of these factors help the court to weigh the likelihood that the defendant will appear for trial, which is what bail is intended to ensure. A criminal defense attorney in the county where the charges are filed will be able to explain which factors carry the most weight in the local court system and what kinds of evidence will be most helpful at a bail reduction hearing.
In most states, the defendant must post the full amount of the bail (or equivalent property) before he is released. Often, the defendant won't be able to cover that cost on his own, and so will have to work with a bondsman. A bondsman writes a bond that guarantees the bail, so that the defendant doesn't have to produce the full amount in cash.
Working with a Bondsman
The major advantage to working with a bondsman is that the defendant can get out of jail with a much smaller cash investment—usually about 10% of the bail amount. The advantage for the courts is that the bondsman, who stands to lose the full amount of bail if the defendant fails to appear in court, has a powerful incentive to ensure that he does. In most states, bondsman can arrest a defendant who has failed to appear and bring him before the court—or back to jail.
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The downside, and one that many criminal defendants have trouble with, is that the 10% posted is the bondsman's fee. If the defendant posts the full amount of bail in cash, the money is returned to him (less, in some states, a small administrative fee) at the conclusion of the case if he has appeared as required.
However, if the bail is guaranteed by a bondsman, then the cash the defendant pays up front is payment to the bondsman. That means that even if the charges are ultimately dismissed or the defendant is found not guilty, he still doesn't get that money back. It's a fair system, since the bondsman has to make a profit for his work and the risk that he takes, but it's money gone forever that could have been recouped if the defendant were able to post bail in cash.
The bondsman will also require a guarantee for the full amount of the bail, so if the defendant fails to appear and the bondsman is required to forfeit the bail, the defendant (or other person who guaranteed the bond) owes him the full amount. In addition, the bondsman can collect from the defendant or his guarantor any costs associated with finding the defendant and bringing him back to court or jail. Depending on the defendant's history and the amount of the bond, the bondsman may require security such as a lien on property to guarantee the bond.
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Property Bonds
In some states and in some circumstances, the court will accept a property bond directly from the defendant in lieu of cash. This might allow the defendant, for instance, to post his home as collateral to ensure his appearance. The risk is the same as when such property is used as a guarantee with a bondsman—if the defendant fails to appear, the property can be seized. However, posting a property bond directly with the court may, depending upon local procedures and administrative fees, be less expensive than working through a bondsman.
OR / Recognizance
In some cases, the defendant can be released "on his own recognizance". Basically, this means that the defendant is released on his promise—usually written—to appear for all scheduled court dates. Practices vary from state to state, and even from court to court, but generally the eligibility of a defendant to be released on recognizance depends on factors similar to those applied in setting bail:
- the crime in question
- the defendant's criminal history
- the defendant's history of appearing in court as scheduled
- family and/or longtime residence in the community
- employment
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Stop — Think — Consider the Best Course of Action
It's only natural that when someone is arrested, he wants to get out of jail as quickly as possible. Sometimes it's an absolute necessity, where waiting even a day or two might mean lost employment, no one to care for children, etc. But in many cases, that eagerness costs money. Often, a criminal defense attorney will be able to get bail reduced, or even secure a recognizance bond. While the temptation is understandably strong to call a bondsman and get out of jail as quickly as possible, waiting to talk to an attorney might mean a difference of thousands of dollars.