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What is Bail?

If you’re facing criminal charges for the first time, or if you have a friend or family member who is, you may be hearing that “bail needs to be posted,” but what is bail exactly? The American Bar Association (ABA) explains bail very well. The ABA describes “bail” as “the amount of money defendants must post to be released from custody until their trial.”

But is bail a fine? No, it is not a fine. In fact, bail is not some kind of punishment handed down by the judge. Bail actually serves a purpose. The reason behind bail is to make sure that a defendant will appear for their pretrial hearings and trial for which they’re required to be. Once the defendant’s trial is over, the bail is returned but some states return bail after a processing fee is deducted.

Setting the Bail Amount

When it comes time to set bail, the judge or magistrate on the case will carefully consider the following factors:

  • The risk that the defendant might flee
  • The nature of the crime being alleged
  • The defendant’s criminal history
  • The defendant’s level of dangerousness
  • The community’s safety

Sometimes when a judge sets bail, it’s conditional on the defendant’s behavior. For example, the judge may insist the defendant does not contact the alleged victim.

If the judge does not believe the defendant is dangerous or a threat to the community, the judge may release the defendant on their own recognizance. This means the defendant is released without having to pay any money.

Instead, the defendant promises that he or she will appear for all of their court dates. Typically, a defendant is released on their own recognizance when he or she has a steady job and deep roots in the community, and other circumstances that reassure the judge that he or she is not a flight risk.

Generally, if a defendant cannot come up with the cash for their bail, they will use a bail bondsman. When a bail bondsman is used, usually the defendant puts up 10 percent and guarantees the remaining amount if the defendant fails to appear in court. However, in some jurisdictions, it’s not necessary to use a bail bondsperson because the courts release people if they pay the 10 percent of the bail directly to the court.