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Dale's Blog

The basics of how bail works

Judges set bail in order to give someone a financial incentive to come to trial and the preliminary court proceedings. If the defendant doesn't show up, the person can lose the amount of the bond he or she posted in order to be released from jail. Here's how it works, as I explained in this column in the Toledo Blade.

In nearly all circumstances, a judge or magistrate must set bond for someone facing a criminal charge. In rare situations such as when the defendant is facing the death penalty, a judge can order someone to be held without bond. In nearly all cases, defendants have a constitutional right to have a bond set.

Judges have a tremendous amount of discretion when it comes to setting bond. Despite that discretion, the amount must be reasonable and not excessive. That's a bit of a fuzzy concept, but factors considered include the seriousness of the charge, whether the defendant is a flight risk, the defendant's record, the defendant's ties to the community, and whether the defendant has failed to appear for court in other circumstances. The wild card beyond those factors is that each judge has his or her own view of what's reasonable and appropriate under the circumstances.

People often wonder why defendants are allowed out of jail prior to a trial, especially if the alleged crime is serious. The main reason is that defendants are presumed innocent in our system until proven guilty. Our federal and state constitutions require that courts don't set excessive bonds so defendants can be free until they get their day in court. But, as a practical matter, there simply isn't enough jail space available to hold defendants even if judges were allowed. Keeping people in jail is an expensive proposition. Judges and various government officials wrestle every day with weighing the balance of protecting the community and ensuring people show up for trial with how to pay for it all. That's a tough equation to calculate.

In some cases, a judge will allow a person to remain free on his own recognizance, which means he won’t have to post any bond at all and the judge is trusting him to come back. The judge also could allow a defendant to post 10 percent of the bond through the court. So if bond is set at $50,000, that means the person could pay $5,000 through the clerk's office and would receive the vast majority of the $5,000 back at the conclusion of the case had he come to court when required.

However, it’s also possible for the judge to rule that 10 percent could not be posted through the court. That means that the defendant would have to put up all $50,000 with the clerk's office to get out of jail while the case is pending.

Most people can't come up with that kind of money, which is where a bail bondsman enters the picture. A bail bondsman typically charges 10 percent of the bond set by the court. The defendant never gets that 10 percent back because that's how the bondsman makes his living. That's the difference between being allowed to post 10 percent through the court or having to go through a bondsman. The bondsman keeps the 10 percent you pay, while the court returns most of it.

When the judge doesn't allow 10 percent to be posted, he or she either assumes the defendant won't be able to post or puts the bondsman in the position of ensuring to the extent possible that the defendant will continue to appear in court.

So in the earlier example, a defendant would have to come up with $5,000 to pay a bondsman, who will then put up the $50,000 bond with the court. The defendant, unfortunately, won't get that $5,000 back. It won't be cheap, but it may be worth it for a person who wants to work while the case is pending trial or simply to secure freedom until trial.