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What is Bail?


gavel used at a bail hearing

If you are placed in jail, the judge will likely set a bail amount. Many people do not fully understand what bail is and how bail works. It’s common to assume that posting bail is like a “get out of jail free card.” In fact, bail is merely a financial assurance for the court that they do not need to hold you in jail until you go to court. We’d like to clarify a few things for you.


What is Bail?

Bail is a financial assurance to the court that the accused person will appear in court for their trial date. You have likely heard the saying “innocent until proven guilty” and that is exactly what bail reinforces. Until they prove you are guilty, you are allowed, legally, to roam the streets. But in order to allow this, they need someone to stand by the fact that you will appear in court to prove your innocence. The system was set up to hold you in jail until your court date in case you are in fact guilty. But because some of these people are innocent, the concept of bail comes into play.

You can look at bail as a form of insurance. The court cannot be 100% sure you’ll show up for your trial, but there’s a greater chance. Bail has been around for hundreds of years and has even been exploited by officers of the law.

The Habeas Corpus Act of 1679 states “A Magistrate shall discharge prisoners from their imprisonment taking their recognizance, with one or more surety or sureties, in any sum according to the Magistrate’s discretion, unless it shall appear that the party is committed for such matter or offences for which by law the prisoner is not bailable.”



How Does Bail Work?

stack of bills to pay bail

Put simply, you can have a bail set before you are even placed in jail. When you are arrested, you will go through what is called the booking process wherein you have your mugshot and fingerprints taken. The last step before they place you in a jail cell is to offer you the ability to post bail. If you do not, then you wait in a jail cell for 1-2 days to appear in court in what is known as a bail hearing. This hearing is where the judge does not ask about your guilt or innocence, but instead sets a bail they find appropriate for your crime.


Posting Bail

Bail can be posted (or paid) by you, a family member, a friend, or a bail bondsman. A bail bondsman makes their money off of extra fees, meaning that you pay an extra percentage on top of your bail. Every other form of bail is free.


Getting the Money Back

One of the main aspects of bail that many people do not understand is that the fee that is “paid” is not permanent. If you do not show up for your court date, the bail is kept by the court. However, if you do show up to court, you receive the bail money back as it was merely an assurance. Bail, as with all insurance, is a bet. You pay a lump sum of cash to assure the court you will show up for your court date. If you do not, the court gets the cash, and eventually you will be picked up off the streets and brought back in for your court date.


Types of Bail

$100 bills for bail

There are a few types of bail and scenarios in which the bail money is thrown around.

  • Cash Bail – As one of the most common forms of bail, cash bail is when you pay the full amount of bail using one of the forms of payment accepted at the court in your state.
  • Bail Bond (Bail Bondsmen) – You’ve likely seen an ad on TV or in the paper for a bail bondsman. In a bail bond, the bail amount is generally too high for most people to pay out. For example, if you go to court and bail is set at $10,000, you may not be able to pay that out of your own pocket. So, you’ll ask a bail bondsman to pay the $10,000 for you, and you’ll pay 10% (in Maryland, 10% is the maximum premium for bail bonds) of the bail amount to the bondsman. If you cannot afford the 10%, you can put collateral up as payment. Most often this collateral is around double the cost of your bail if it were to be sold. So, you’ll pay $1000 to the bail bondsman, who pays $10,000 to the court for your release. The catch with bail bondsmen is that when the bail is higher, the crime is more severe, meaning you have a higher “flight risk”. This means you’re more likely to skip your court date. If this happens, the bail bondsman can keep your collateral to do as they wish. The bail bondsman also goes to an insurance company to receive that $10,000 back.
  • Released on Your Own Recognizance – This is not technically a type of bail, but still falls under similar context. A judge can decide not to set a bail amount for you and not ask you to stay in jail until your court date. Essentially, the bail set is a total of $0, meaning you do not have to stay in jail. The courts generally only do this when the crime is minimal, such as too many unpaid parking tickets. You are likely to show up to court without any sort of assurance.


Criminal Defense Attorney’s Role

Once the bail is posted, you must show up in court for your court date. If you do not, you will be arrested and have a significantly lower chance of winning your case. Before bail is set and after it’s posted, you should have a criminal defense lawyer. A criminal defense attorney can negotiate the bail amount down to a reasonable number. Without a lawyer, you’re likely to pay more out of pocket for your bail than is necessary.

Contact us today if you’re loved one has run into trouble with the law. Our consultations can guide you in the right direction.