You have been arrested. To you, the criminal justice system is unfamiliar, confusing and intimidating. Maybe even frightening. You are not alone is this situation. What do you do? First off, you contact your criminal defense attorney immediately. You should know this: The criminal justice system functions and is balanced between two very important principles: (i) Your right to be treated as an innocent person until proven guilty (ii) The system’s obligation to protect society from further harm once law enforcement believes a wrongdoer has been identified. It’s a fine balance, and right in between these two is bail.

In simple language, bail is the amount of money you, a defendant, pay to the justice system as a security for your release. In exchange, you guarantee that you will show up in court at a scheduled later date. It means you will not spend time in jail waiting for your trial. It is a formal agreement between you and the criminal justice system.

After your arrest, you and your attorney will appear at a criminal court arraignment or hearing, before a judge who will set your bail. Under ordinary circumstances, a bail amount usually will be set. The judge who sets bail often relies on guidelines – much like an insurance table – to determine the amount of your bail. The amount set of your bail could depend on a checklist of several things:

  • What is the nature of the crime?
  • How serious is the crime?
  • Is this your first arrest?
  • Do you have a criminal record?
  • Have you been in prison?
  • What sort of background do you have?
  • Are you considered dangerous to others?
  • Do you have a history of violence?
  • Do you have ties to the community?
  • Do you have a family, a job?

It is important to note: For less serious or dangerous crimes – minor crimes or crimes where there is no victim – a court may only require your word, your promise to return for your trial. This is called being released on your own recognizance – a personal recognizance bail bond (PRB). However, if a court believes you are of any threat to another, or to society at large, it will be very difficult for that court to believe you will keep your word.

The bottom line: Your personal record is your report card – and a PRB is a gold star. In extraordinary circumstances, a court may deny bail altogether because the defendant is a flight risk, the defendant possibly could commit havoc or endanger public safety, the defendant is deemed mentally unstable, or the nature of a case – usually murder or treason – is deemed too heinous. In New York State, for most serious crimes, a judge or magistrate will set bail during an arraignment. In federal court, bail is set at a detention hearing.

In both New York State and federal courts, the bail process is supported by licensed bail bondsmen. Like insurance agents, they write up bail bonds (insurance policies) guaranteeing you will appear in court at the scheduled time. In fact, a bail bond – also known as a surety bond – is an insurance agreement. If you do not appear in court at the scheduled time, the bail bond company is required to pay the bail’s full amount to that court.

How this might work: Your bail has been set at $25,000, for example. You don’t have that kind of money. After you sign an agreement with the bail bond company, that company will post the amount for you in court. In turn, you will be required to pay the company a portion of the bail set. In New York State court, this is usually 10% of the bail value (or, in this case, $2,500). In federal court, it is usually 15% (or, in this case, $3,750). In both cases your payment to the bail bond company is non-refundable. This is your fee for the bond. Typically, bail set in federal court is much higher. A lot of money exchanges hands. This is why federal bail bond fee rates are higher. The exceptions to the bail bond rule are the cash bond, the immigration bond, and the property bond.

The cash bond is a cash-only exchange between the defendant and the court. The defendant may be deemed a flight risk, or has failed to appear in court before, or has amassed large unpaid fines. Typically, the court will hold the money until all proceedings are finished and all costs or fines are deducted. The balance is then returned to the defendant, or to the third party that originally posted the cash bond on the defendant’s behalf.

The immigration bond centers on illegal alien proceedings. The individual arrested is an illegal alien. This is a federal bond – not state. The fee is typically 15-20% of the bail bond amount. The defendant deals directly with the Department of Homeland Security (DHS) or the Bureau of Immigration and Customs Enforcement (ICE).

The property bond occurs when the defendant, or third party, pledges real property to match the amount of bail set. It most-often occurs during land-development proceedings. Usually the equity of the property must be assessed at twice the amount of the bail set. If the defendant fails to appear on a scheduled date, the state can levy or institute foreclosure. It sounds very cut-and-dry, but it isn’t. This is important: The Constitution (the 8th Amendment) guarantees your right to reasonable bail. “Excessive bail shall not be required.”

The judge may have guidelines, but he doesn’t have to follow them. The bail he sets is at his own discretion. This is where your criminal defense attorney is critical during your arraignment or hearing. Not only will he work to lessen the criminal charges against you, but he will also work to get your bail lowered, to have a more reasonable bail set. He might argue on your behalf by pointing out: the lack of a lab report in a drug case, the lack of a supporting deposition in an assault or criminal mischief case, the failure of the District Attorney to file an affidavit of the owner of the property in a shoplifting case, or the simple fact that you were somewhere else. In fact, his voice – speaking on your behalf – could mean the difference between bail set and being released on your own recognizance (ROR). The bottom line is this: The bail set is a matter of record, your record, and what that is goes a long way to determining what might follow at a trial. For information on our bail reduction hearings, please contact The Blanch Law Firm at 212-736-3900