What Happens When You Get Arrested?

When an individual is arrested for a crime, the person is typically taken to a local detention facility for booking prior to incarceration in a lock-up station or county jail. Once arrested and booked, the defendant has several options for release pending, the conclusion of his or her case.

The bail system is designed to guarantee the timely appearance of a defendant in court. Bail is also an insurance policy for the State that the defendant will appear to face charges. Further, the legal intent of release on bail is not to relieve the defendant of obligations; it is the retention of control over the defendant to the end that justice might be administered.

Release Options

There are five basic release options:

Cash Bond

A cash bond requires an individual to post the total amount of the bail (not just 10%) in cash. The court holds this money until the case is concluded. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. In this case, the defendant may be his or her own guarantor.

Note that recent federal laws restrict cash bails in cases involving narcotics. In these cases, all cash or assets used to secure a cash bond or surety bond must be proven to have not originated from narcotics trafficking before bail is granted.

Surety Bond (Common Bail Bond)

A surety bond is a series of contracts that guarantee the defendant's appearance in court. When a professional bail bond agency guarantees that appearance, it is called a surety bond and the bond agency is fully liable if the defendant does not appear through an insurance company, called the surety. In turn, the bond agency charges a premium for this service and often requires collateral from a guarantor. The guarantor generally knows the defendant and is guaranteeing appearance in court. Ironically, while a defendant who fails to appear in court is subject to additional charges, he or she is not normally liable for any bond forfeitures (unless the guarantor arranges such an agreement with the defendant).

Property Bond

In rare cases and a few jurisdictions, an individual may obtain release from custody by means of posting a property bond with the court. The court records a lien (or right) on the property to secure the bail amount. If the defendant fails to appear, the court may institute foreclosure proceedings against the property. Often, the equity of the property must be twice the amount of the bail set.

Own Recognizance (OR)

OR constitutes an administrative pre-trial release. Usually court administrators or judges interview individuals in custody and make recommendations to the court regarding release on OR (i.e., without any financial security to insure the appearance).

Criminal Summons (Cite Out)

This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear on an appointed court date. Cite outs usually occur immediately after an individual is arrested and no financial security is taken.

Who Sets Bail Amounts? 

A judge, magistrate or commissioners normally set the bail amount for a particular case according to an either the county bail schedul (a.k.a. Schedule of Bail for All Bail able Offenses) or a judgment analysis of the particulars of a case. 

In setting or denying bail, the judges,  magistrates or commissioner's  first concern is the protection of the public, followed by the seriousness of the offense and previous criminal record. Further, the they must be convinced that no part of the bail was feloniously obtained.

Who May Accept Bail?

In most jurisdictions, a judge, a bail clerk, a court clerk, a magistrate, or a commissioner and possiblly a designated jailer can accept bail. Note that this usually does not include the arresting officer.

Occasions When Bail May be Granted

Bail is normally granted when:

• A person is arrested for a bailable offense, prior to appearance before the magistrate or other arraignment.
• A person is arrested for a bailable offense, following formal indictment or charges
• A person is convicted of an offense but is awaiting sentencing (when the sentence is likely to be modest)
• A person convicted of an offense but is making an application for probation.
• A person convicted of an offense is making an appeal (usually only after certification that the person is not a flight risk, faces a modest sentence, is not a threat to the community, and has a good court appearance record).

Note also that most jurisdictions will not grant bail for capital crimes or violent felonies without the defendant first attending a hearing for which the prosecuting attorney is granted time to prepare (often 2 court days).

A defendant charged with a crime punishable by death usually cannot be granted Bail if the proof of his guilt is evident or the presumption thereof is great.

The Right of the Surety and Bail Agent to Pursue a Principal Who Has Fled

The surety (and through it, the bail agent) in a bail bond has the right to turn its principal (the defendant) over to the Court (via law enforcement) at any time and, to this end, may pursue and seize him wherever they may find him, even if he is in another state.

 More plainly, the bail agent or surety may cancel the bail at any time and turn in the defendant if necessary (e.g., defendant has left his job, cannot be located, or is reported to be planning flight).

By common law, the surety may arrest a defendant who has failed to appear at any time and in any place. This arrest is legally considered a continuation of the original custody and has been likened by the U.S. Supreme Court (Taylor v. Taintor 16 Wall, 366) to the re-arrest of an escaped prisoner by the Sheriff. In the same case, the Court also related that bail was intended to transfer custody from the Sheriff to the surety, not to discharge the defendant from custody.

 More plainly, the Bail Agent may use forcible entry and is not required to have a warrant or court order.

The Supreme Court has also ruled that "Bail has no power to arrest the principal in a foreign country" (Reese v. S. 9 Wall 13).

The surety and its bail agent may empower any person of suitable age to arrest a defendant (usually by providing written authority on a certified copy of the certificate of deposit).

 In summary, bail agents have more powers than states do in pursuing and arresting principals (defendants). Bail agents do not need warrants or extradition proceedings as states do.

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