Bail, and bail bond, is an amount of money given to a court as a form of collateral to ensure that a defendant appears in court for their trial (or fulfills some other court-order duty). When a person “posts bail,” that money secures their release from jail.
This article provides a definition of bail and bond and explains the difference between the two. It goes through the process of booking, arraignment, charging, and sentencing to show where in the criminal justice process bail and bond are set.
Bail can also be ordered in a civil case, but this article will focus on bail in criminal cases.
Bail vs Bond: Is There a Difference?
There are two challenges to defining “bail” and “bond”:
The terms are used interchangeably in different parts of the country
The terms are used, in common practice, to refer to payment to the court (a noun) and to the process of securing release from jail (a verb).
Keeping these challenges in mind, it is possible to outline the differences between bail and bond in criminal cases.
In the case of a serious crime, a judge may believe that a written promise is not enough to ensure an accused individual will appear on their court date. The judge may want a financial guarantee in the form of collateral. The judge sets an amount of bail money the accused must pay to obtain their release from police custody.
Once a court has set the amount, or a specified percentage, the defendant pays in cash or an approved cash substitute (money order or cashier’s check).
If the defendant (and their friends and family) cannot afford to pay that amount of bail, they can contact a commercial bail bond agent (or bail bondsman). A bond agent will charge a non-refundable fee, usually ten to twenty percent of the total bail amount. In return, the bail bond agent agrees to pay the full amount of the required bail to the court.
So, these are the primary differences between bail and bond:
The source of the money: (the defendant and family or a bail bond business)
Whether all the money will be returned at the end of the trial: In the case of a defendant paying cash bail, it will all be returned at the end of the trial if the defendant showed up in court. In the case of a bail bond, the smaller amount of money paid to the bail bond business is not returned. It is essentially a cost of doing business, like paying interest on a loan.
What happens if the defendant doesn’t appear in court: If a defendant on bail fails to show up in court, they forfeit their bail money. The judge issues an arrest warrant, and law enforcement will try to arrest them. If a defendant with a bond fails to show up for their court hearing, the court takes the money from the bail bond company. The defendant or defendant’s family now owe the bail bond company the full amount and the company can take any collateral that was promised in order to get the bond. The judge issues an arrest warrant and both law enforcement and the bail bondsman (or bounty hunters) could attempt to find the defendant.
Bail Bond Agents
In most states, a bail bond agent is licensed. Their license relates to insurance coverage because a bail bondsman is certified by an insurance company in order to be able to provide customers with a surety bond to ensure court appearances. The bail bondsman takes money from a customer and gives it to an insurance company.
If the defendant “jumps bail” and fails to appear, the bail bond agent will be liable for the costs due to the court.
Bail in the Criminal Justice Process
There are several times in the criminal justice process where bail can be ordered. Some of the most common times to address bail are these events.
The Booking
After a person has been placed under arrest, they will be taken into police custody and booked or processed. If they were arrested for a misdemeanor offense, they might be given a written citation and released, after promising to appear in court at a later date. If they are not released, they will be jailed until their arraignment hearing. That usually occurs within twenty-four hours.
The Arraignment
At the arraignment hearing, the accused will hear the formal charges against them, and arrangements will be made for a defense attorney. At this time, the judge will decide whether the accused can have pretrial release or will be held in jail. The main concern is whether the accused will show up in court.
When deciding whether a defendant should be released, the judge will consider:
The seriousness of the crime
The defendant’s past criminal record, if any
Whether they could pose a danger to the community
Whether they are a flight risk because they have no significant ties to the community
In certain cases, the defendant may be eligible to be released on their own recognizance. This means they promise in writing to appear in court later and they are released immediately, without any bail.
They could also be released on an unsecured bond. An unsecured bond means that if the accused does not make their court appearances, they will pay a bond amount after the fact. The advantage is that they are not required to post the cash bond in order to get released, only if they fail to appear. The judge could also decide that the defendant should pay bail or should not be released on bail.
The Bail Hearing
Following arraignment, there is a hearing to learn more about the defendant. The bail proceedings can vary from court to court, but generally, the court will have a bail hearing to decide whether to grant bail (in extreme cases a court can deny their release altogether) and, if so, what amount is appropriate. The court will have a bail hearing, during which it will consider:
The defendant’s physical and mental condition
The defendant’s financial resources and ability to pay bail
Family and community ties and length of residence in the community
Any history of drug and/or alcohol abuse
Any criminal history or previous record of appearance at court proceedings
Along with the monetary bail determination, the court could also impose conditions of release. Common examples include limiting travel, enforcing a curfew, revoking gun ownership privileges, or requiring drug, alcohol, medical, or psychological testing or treatment.
Once the court has set bail, that amount, or a specified percentage, must be posted, or paid to the court. After bail is posted, the court will issue an order of release.
Pre-Trial Bail Changes
A judge can choose to modify bail if the criminal charges are modified before the case goes to trial, or if the accused changes their plea. For example, new evidence may be uncovered that makes the crime more serious and now bail is denied.
Post-Conviction Bail Changes
After the accused has been convicted and sentenced for a crime, there are several situations in which bail may still be required:
If the defendant was released but failed to live up to the terms of their sentence (for example, failed to attend counseling)
The defense lawyer files a motion for reconsideration of the sentence.
Are There Higher Bail Requirements in Criminal Cases?
It is difficult to compare criminal bail to civil bail.
The amount of bail set for a criminal case relates to the seriousness of the crime. The greater the risk of incarceration or severe penalties, the more likely a person is to “jump bail” and leave town. Bail can be set quite high for very serious crimes, but lower-level criminal charges tend to have much lower bail. Not all criminal bail amounts are high, but some defendants cannot even afford the smaller amounts, so they remain in jail before trial. Nationwide, there is a movement to reform bail to prevent this from disproportionately harming poorer defendants.
Bail can (though rarely is) ordered in civil trials. When it is, the amount of bail relates to the plaintiff’s losses. If the court finds for the complaining party, repayment could be taken out of the bail money in the court’s possession.