What is Bail

Most people are unfamiliar with bail bonds. When someone is arrested on criminal charges, they may be released by posting a bail bond.  This process involves a contractual undertaking guaranteed by a bail bondsman and the individual posting bail. The posting of a bail bond acquired by or on behalf of the incarcerated person is one means of meeting the required bail. When a bail bond is issued, the bonding company guarantees that the defendant will appear in court at a given time and place. If the defendant fails to appear, the bond amount becomes payable and is forfeited as a penalty by the bonding company issuing the bond.  This creates a tremendous risk for the bonding company and bail bondsman agencies.

For this service and risk assumed by the bonding company, the defendant is charged a percentage of the bail bond amount; 10% in California.  A licensed bail bondsman will post the bail which will result in the defendant being released.  Either the defendant or their loved ones will execute a civil contract stating they will pay the remaining 90% of the bail if the defendant fails to appear at all required court appearances.  Verbal contracts and agreements are enforceable.

Collateral is not always required for a person to be bailed from jail.  Often a person can be released from jail via bail bond on the signature of a friend or family member.  Cosigners/Indemnitors typically need to be gainfully employed or receiving steady income, reside in the same geographical area for some time, have some net worth or liquid assets to provide as collateral.

History of Bail:

Bail as practiced in America evolved directly from the English system. As in England, the American system also included guarantees against imprisonment without informing the suspect of his crime.  The Sixth Amendment to the U.S. Constitution, insures that when arrested, a person “be informed of the nature and cause of the accusation,” thereby enabling him or her to demand bail if they have committed a bailable offense.  The U.S. Constitution guarantees that excessive bail may not be employed to hold suspects who by law are entitled to bail. This Constitutional guarantee was further strengthened by Congress with the passage of the Judicial Act of 1789 (section 12), which made the right to bail almost absolute with the exception of capital cases where the judiciary retains the discretion to rule when needed.

Early on, “bail jumpers” began using the American frontier as a means to escape the law. U.S. courts developed a system that allowed defendants to pay for their pretrial release.  If the defendant failed to appear for trial, he would forfeit the sum paid.  While many defendants could not afford to pay the full bail amount for release, most could afford to pay a fee to a bail bondsman, who then agreed to pay the full amount to the court.  Like a personal surety, the bail bondsman acted as a proxy for the state and had the power to recapture the defendant at anytime.  If the defendant did not appear at trail, the money that the bail bondsman paid for the defendant’s pre-trial release would not be returned.

How Bail Bond Amounts are set in California;

The Judicial council of California establishes uniform bail and penalty schedules for certain offenses, primarily Vehicle Code violations and misdemeanors, in order to achieve uniform statewide standards in the handling of the offenses.  County Superior Courts are required to adopt a countywide bail and penalty schedule.  County Superior court judges can also require additional bail for aggravating or enhancing factors.  If the county bail schedule varies in any substantial way from the state schedule, the court must notify the Judicial Council.

Upon conviction, additional penalties and fines are also included as part of the uniform bail schedule.  These penalties and fines are used to fund certain local and state criminal justice programs such as DNA testing and the Peace Officer Standards and Training Commission (POST).

Setting Bail schedules for serious felony crimes is slightly different.  It is the responsibility of superior court judges in each county to adopt a bail schedule for the felony offenses and misdemeanors listed primarily in the Penal Code and Health and Safety Code.  Before adapting a countrywide schedule for these types of crimes, judges must consider the seriousness of each charged offense and assign an additional amount of bail for each aggravating or enhanced factor for the specific charge.  Once these amounts are established, a copy of the countywide bail schedule is sent to the officer in charge of the county jail and/or each city jail within the county, to each superior court judge, and to the commissioner of the county courts.

The officer in charge of the jail or detention center is authorized to approve and accept a bail bond when requested by a defendant.  In instances where a jail officer determines the amount of scheduled bail for the charged defendant is insufficient to assure an appearance for arraignment or to assure protection of a victim, he or she may request to the presiding judge that the accused remain in custody until a hearing can take place.  Depending on the seriousness of the crime, a bail hearing involving a superior court judge would follow to determine if the accused is eligible for bail, and if so, whether any additional amounts would be included before release.