Indiana Law Blog
Being arrested is a jarring and confusing experience, and one of the first concerns for many people is how to get out of jail as quickly as possible. It is important to know some basics about the bail process so you can quickly take charge of the situation.
What is Bail?
Bail is a set amount of money or property that acts as insurance between the court and the person in jail (the defendant). The defendant can be released from jail pending trial if they can post bail. The purpose of bail is to ensure that the defendant returns for their court appearances while allowing them to remain free until their trial date.
How is Bail Set?
The amount of bail is typically set by a court’s pre-determined local bond schedule, or by a judge during a bail hearing. The judge will consider several factors when determining the bail amount, including:
The Severity of the Crime: More serious crimes typically result in higher bail amounts.
Criminal History: Defendants with prior convictions may face higher bail or be denied bail altogether.
Flight Risk: If the judge believes the defendant is likely to flee and not return for court, they may set a higher bail or deny bail.
Community Ties: Defendants with strong ties to the community, such as family, employment, or property ownership, may be granted lower bail.
Public Safety: If the defendant is considered a danger to the community, the judge may impose a higher bail or deny it.
Other Factors: the court may consider other circumstances, such as care for elderly family, or care for children, or other viable types of pre trial release. Please discuss with your attorney any factor you think may be relevant to why you should not be held in custody.
Types of Bail There are several types of bail that a defendant might encounter
Cash Bail
The defendant or their family pays the full amount of bail in cash. If the defendant attends all court appearances, the money is refunded, minus any fees or fines.
Surety Bond
A bail bond company posts bail on behalf of the defendant for a fee, usually a percentage of the total bail amount. The fee is non-refundable.
Property Bond
The defendant or a third party uses real property as collateral for bail. If the defendant fails to appear in court, the property may be seized by the court.
Release on Own Recognizance (ROR)
In some cases, the judge may release the defendant without requiring them to post bail, based on their promise to return for court dates. This is usually granted to low-risk defendants. Personal Recognizance Bond Similar to ROR, but may involve a signed agreement with conditions that the defendant must meet, such as attending all court dates or avoiding certain activities.
The court may combine several of these options.
The Bail Process Arrest and Booking
After an arrest, the defendant is held in jail until booking is complete, where they are fingerprinted, photographed, and have their personal information recorded. At the Bail Hearing, the defendant (with or without an attorney) appears before a judge for a bail hearing, usually within 48 hours of the arrest. The judge will hear both the State and the Defendant regarding the appropriate bail, and determine the bail amount and any conditions of release.
Posting Bail
If bail is set, the defendant or their representative can post bail through cash, bond, or property. Once bail is posted, the defendant will be released from jail. Many county jails have strange rules, so make sure you call the jail in advance to determine what forms of payments they will accept.
Compliance with Conditions
The defendant must comply with all conditions and orders set by the court, such as attending all court appearances and avoiding certain activities or individuals. Most importantly, he must appear for all hearings, not commit new crimes, and not violat d No Contact orders.
Refund of Bail
If the defendant meets all court obligations, cash bail is refunded after the case is resolved. However, if the defendant fails to appear in court, they forfeit the bail, and a warrant may be issued for their arrest.
Pros and Cons of Bail
Pros:
Temporary Freedom: Bail allows the defendant to remain free until their trial, enabling them to continue working, supporting their family, and preparing their defense.
Access to Legal Counsel: Being out on bail gives the defendant better access to their attorney, which can help in building a stronger defense.
Potentially Lower Costs: Posting bail directly (cash bail) may be less expensive in the long run than paying a non-refundable fee to a bail bondsman. Cash bonds are almost always a better option!
Cons:
Financial Burden: Bail can be expensive, and coming up with the full amount in cash may be difficult (or impossible) for many families.
Risk of Forfeiture: If the defendant fails to comply with bail conditions or misses a court date, they may lose all the money they posted as a penalty.
Alternatives to Bail
In some cases, courts may offer alternatives to traditional bail, especially for low-risk defendants. These can include:
Pretrial Services: Monitoring by a probation department or a pretrial services agency, which may involve regular check-ins, alcohol screening, or electronic monitoring.
House Arrest: Confinement to the defendant’s home with permission to leave only for work, court appearances, or other approved activities. It may involve a GPS monitor.
Conclusion
Understanding the bail process is crucial for anyone facing criminal charges. The first step is knowing what is possible so you can make an informed decision.
If you or a loved one is navigating the bail process and need legal guidance, contact Harshman Ponist Smith & Rayl, LLC. Our experienced attorneys can help you understand your options and work to secure the best possible outcome for your case.