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Bail

Civil Actions, Criminal Prosecutions, Discretion Of The Court, Breach And Forfeiture, Further Readings

The system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial.

In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made, and this option is called bail. Bail is set by the judge during the defendant's first appearance. For many misdemeanors, bail need not be set. For example, the defendant may be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.

The courts have several methods available for releasing defendants on bail. The judge determines which of these methods is used. One alternative is for the defendant to post a bail bond or pledge of money. The bond can be signed by a professional surety holder, the accused, or the family and friends of the accused. Signing the bail bond is a promise that the defendant will appear in the specified criminal proceeding. The defendant's failure to appear will cause the signers of the bond to pay to the court the amount designated. The amount of bail is generally an amount determined in light of the seriousness of the alleged offense.

A defendant can also be released upon her or his own recognizance, which is the defendant's written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognizance constitutes a crime.

Other conditions may also be set regarding the release of the defendant. The Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many additional conditions that do not rely upon finances and that reflected current trends to move away from financial requirements for freedom. These conditions came about, in part, owing to concerns regarding the discriminatory nature of bail toward the poor. The Bail Reform Act allows for conditional releases dependent upon such circumstances as maintaining employment, meeting curfews, and receiving medical or psychiatric treatment.

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