Criminal Defense Lawyer S. Joshua Macktaz, Esq.Schedule a Free Consultation
This is very important. Bail is not just an amount that an arrestee has to pay the court for doing something wrong. Not everyone can afford the bail that is set by the judge and this brings in Bail Bonds.
An arrestee (or his/her family or friends) gives cash or property to the court to guarantee that the arrestee will appear in court. An arrestee has a right to release on bail for most offenses except murder and violent felonies. If the arrestee appears in court, the amount of bail is refunded.
If an arrestee cannot pay the full amount of the bail, he/she can buy a bail bond. A bail bond is a guarantee by a third party (called a surety or bond seller) to pay the arrestee’s bail. A bond is given to the court. If the arrestee fails to show up in court, the court keeps the bond. A bail bond generally costs about 10 percent of the bail amount. So, if bail were set at $2000, the premium for the bail bond would be $200. Even if the arrestee appears in court, this $200 will not be refunded. The surety may also require an arrestee to put up collateral (valuable property) for the bond. If the arrestee fails to appear, the surety gets to keep this property.
Bail works by releasing a defendant in exchange for money that the court holds until all proceedings and trials surrounding the accused person are complete. The court hopes that the defendant will show up for his or her court dates in order to recover the bail.
It is the judge’s responsibility to set bail at the arrestee’s first appearance in court. However, most jails have bail schedules for common crimes. If the bail is paid, the arrestee will be released immediately. If the arrestee cannot afford the amount of bail set by the jail schedule, he/she can ask the judge to lower the bail.
The judge can decide to release the arrestee on his own recognizance (sometimes called O.R. or R.O.R.). No bail is posted, and the arrestee simply promises to appear in court.
The Eighth Amendment to the United States Constitution prohibits excessive bail. The amount of bail should not be more than what is reasonably necessary to keep the arrestee from fleeing before trial. In practice, however, judges often set very high bail for drug, rape, or murder cases. This acts as preventative detention and keeps the arrestee in jail until a verdict is reached.
Surety bonds are defined as a guarantor’s promise to pay the obligee if the principal fails to fulfill the obligation which was agreed upon. The bond protects the obligee against the possibility of the principal’s failure to fulfill the terms of the contract. Surety bail is the posting of property to secure the release of a defendant. When two separate owners post two separate properties to secure the release of one defendant It’s known as Double Surety.
§ 10-11-2 Giving of bail bond. – Whoever shall become bail for any person may give bond to a member of the division of sheriffs, if the writ or process shall be served by the division of sheriffs; and if the writ or process shall be served by a town sergeant or constable, the bail bond in such case shall be given to the officer serving the writ or process.