We've all seen the courtroom drama show- the judge hears the initial details of a case
and then after a little bit of deliberation, announces that the trial will proceed, and
the defendant is told “bail is set at $100,000!”.
But what does that mean exactly, and what happens when you post bail?
You're probably familiar with the term “getting bailed out” of something, or being saved
from having to do something unpleasant by someone or something else out of your control.
In reality, bail is similar, though unlike what some hopeful criminals might think, paying,
or posting, your bail does not in any way get you out of your crime.
The bail system has its roots all the way back in jolly old England, when humanity as
a civilization started deciding that criminal cases should be tried in a court of law instead
of relying on the age-old technique of blaming crimes on witches, and then seeing if they
weighed the same as a duck because they were made of wood.
As effective as duck-weighing techniques had been, criminal proceedings based on science's
newest discovery of 'evidence' and 'witness testimony' tended to yield far better results,
and enlightened minds across Europe took to systems of courts and judges to prove or disprove
innocence.
Unfortunately for the accused though, this could result in being arrested for a crime
and being forced to sit in a dungeon for weeks, possibly even months, as evidence was gathered
and then a trial took place.
In the case of those who would inevitably be found innocent, this was hugely disruptive
to daily life, and led to lost jobs, lost income, and often undue suffering on the rest
of an individual's family.
Gradually criminal courts established a system by which defendants could be allowed to live
their normal lives while their trials took place, in exchange for valuable collateral.
This was often a cash sum which would have to be given to the court and whom would retain
the sum until a trial was concluded- sometimes if the defendant was found guilty the sum,
or part of it, would then be kept by the court as part of the criminal penalty.
In 1677 the English parliament would go on to pass the Habeas Corpus Act, which among
other things, would officially charge magistrates with setting the terms for bail.
Because human beings are terrible at everything we do, twelve years later parliament had to
step in again with the English Bill of Rights and establish restrictions against excessive
bail amounts, which prevented all but the wealthy from actually posting bail.
The US would go on to adopt a similar bail system and was in fact heavily influenced
by English law.
In the US though a key difference would be that only noncapital offenses were bailable-
these were crimes that did not carry the possibility of the death penalty.
For capital crimes though judges were afforded the right to use their own judgment on whether
they would permit bail or not.
Bail law in the US would remain relatively unchanged until 1966, when the American Congress
passed the Bail Reform Act.
This lowered the amount of bail that courts could impose on individuals, after a long
record of poorer criminal suspects having their entire lives destroyed by their inability
to post bail on a weeks, or months long trial that ended in their innocence.
You'd think we would've learned not to shaft poor people all the way back in 1689, but
as we mentioned, humans are terrible at everything we do.
So basically, bail is a sort of financial collateral that the court orders, and you
as the defendant have the option of paying it or not.
If you don't pay bail then you will be forced to spend your time while charged with a crime
in lockup, which can impact your personal and professional life in huge ways.
When you post bail though the court receives a payment from you in the form of check, money
order, and in some courts even credit card, and they retain that amount until the end
of your trial.
As long as you show up to your trial all the way until the last day, your bail will eventually
be released back to you in its entirety.
The amount set for bail though depends on the severity of the crime, and some crimes
require no bail at all- this is called releasing an individual on their own personal recognizance
and is reserved for very minor, nonviolent crimes and when you, the defendant, is not
considered a flight risk or a danger to yourself or others.
If you are in fact considered a flight risk- meaning the court has reason to believe you
may try to flee the country- or if you are considered a serious violent threat to others,
a court may flat-out deny bail, or simply dramatically increase the amount.
Hopefully if you've been forced to re-mortgage your house to post bail you may be financially
motivated to actually show up to court.
Some individuals though, specially those facing multiple murder charges or terrorism charges,
are denied bail completely, and may never post it, thus remaining in police custody
until the end of their trial.
While some guidelines for bail do exist, they differ from state to state and even county
to county, but generally rely on the judge's own discretion.
The federal government though can directly intervene and request that bail not be granted
if the crimes in question are federal violations.
But say that you can't afford to post bail, what then?
Well, you could simply spend your entire pre-trial and trial period in lockup, or you could have
a family member or friend get a bail bond from a bail bondsman.
This is a third party lender whom agrees to put up the total bail amount that the court
is asking for, in exchange for some sort of collateral from the individual seeking the
bond- plus typically a ten percent premium on the bail bond.
So if you happen to be in the wrong place at the wrong time and get picked up for murder,
your buddy may have to contact a bail bondsman to put up the $100,000 bond in exchange for
some form of substantial financial collateral- title to a house, jewelry, or other valuables-
as well as a 10% fee, or $10,000 in this case.
That might sound like a raw deal, but probably better than having your entire life upended
and losing your job, and possibly your marriage, while you wait out a trial that proves you
innocent.
Sometimes though you can cut the middle man out altogether, and if you don't have cash
on hand, a court may accept a property bond to post your bail.
This means that the court would get a lien- or a legal claim- to your property in the
amount of the bail.
Then if you don't show up to your trial, the court can foreclose on your property and sell
it off in order to recover the bail amount.
Some people choose to post bail and then flee the local area, or even the nation they live
in- leaving loved ones or a bail bondsman to pick up the very expensive bail tab.
In these cases individuals or bail bondsmen can hire the services of a bounty hunter,
who will hunt down the fugitive, now known as a 'skip', and bring them back to face trial.
This saves the bail bondsman or you, the loved one, from losing the bail posted, and in exchange
the bounty hunter gets a fee of 10 to 20 percent of the total bail bond.
Posting bail is meant to be a way to reduce the financial and other burdens placed on
an individual's life while they await, and even as they go through a trial.
Because our legal systems are based on assuming innocence until proven guilty, bail is a humane
way of allowing an individual to continue living a normal life during the course of
a trial, and making sure that the process impacts their ability to earn a living and
provide for their family as little as possible.
Sometimes a crime is so heinous though that despite the initial presumption of innocence,
a court will flat-out refuse to issue bail, and some crimes are so small- such as misdemeanors-
that bail is simply unnecessary.
Along with a bail though, bail conditions may have special considerations.
For example, the highest bail ever set in the United States was for Raj Rajaratnam,
who faced numerous criminal charges in a 9 billion insider-trading scheme.
His bail was set to $100 million, and he was forced to surrender his passport and all travel
documents, as well as wear an electronic monitoring bracelet for the duration of his trial.
Have you ever had to post bail?
Think you would make a good bounty hunter?
Let us know in the comments!
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