Being charged with a criminal offense can be very stressful and frightening experience. For most people charged with a crime, the incident ends with them confined in a county jail hoping to be released quickly.
When in jail, the magistrate is required by North Carolina statute to advise all recent arrestees of the charges against them and the conditions under which they may obtain their release.
The magistrate has wide discretion in determining a person’s pretrial release conditions. Some factors the magistrate considers in make his/her determination include:
- the person’s charges, whether he will pose a danger to other people or property if released
- whether he is from out of state or lives close by
- whether the person is a flight risk (likelihood the person skips his next court date)
- the person’s criminal history
The Magistrate is primarily concerned with the person showing up on his court dates and the potential threat he poses to others in society. Less serious misdemeanors will usually have smaller bond amounts or no bond requirement. For more serious charges, such as felonies, bond amount will usually be higher.
What Are the Possible Release Conditions?
After assessing all of these factors, the magistrate will then set release conditions for the defendant, which will fall into one of the following categories.
- Written Promise: the magistrate could release the suspect only on a written promise to appear. This is the best-case scenario. In these cases, the magistrate most likely found that the suspect is a minimal flight risk and is charged with low-level misdemeanor.
- Release into custody of another: A suspect could also be released into the custody of another person. If for instance the recent arrestee is intoxicated and found not competent to take care of himself, he can be released into the custody of a friend or family member.
- Cash Bond: If after assessing the circumstances of the recent arrestee the magistrate believes the person may be a flight risk, the magistrate can set a cash bond. The cash bond can take two forms, either secured or unsecured. An unsecured cash bond means that the defendant does not need to pay any money to be released so long as he is present at all of his court dates. If he fails to appear, the unsecured bond will become secured and he will be required to pay the specified amount to be released. Secured bond requires the person to pay money prior to being released.
- Bail Bondsman: The person can either pay the entire bond amount himself or can enlist the services of a bail bondsman to post the bond. If a bail bondsman is needed, the defendant will typically pay the bondsman a fee that is a percentage of the bond, usually between 15% to 20%, and the bondsman will post the remainder of the bond amount. In this case, the bail bondsman bears the risk of a person not showing up to court. Failing to appear requires the bondsman to forfeit the bond. Once the case has been disposed of, the bondsman will get the bond money back. If the arrestee posted bail money himself, the entire bail amount will be returned to him once the case is over. If a person cannot afford bond nor obtain a bondsman, he will be confined to jail until his case resolved. For people who cannot afford to be bailed out, not all hope is lost. The person will have a bond hearing, which in some circumstance can result in lowering bond or even getting the person released from custody.
How is Bail Set?
Bail is a certain amount of money that is posted by a criminal defendant in order to be set free prior to their criminal trial. In order to determine the amount required for bail, a judge or magistrate will issue the amount at the defendant’s bail hearing or arraignment. Bail not only allows defendants to avoid the unpleasantness of sitting in jail but also guarantees that the defendant will actually show up to their trial due to the risk of forfeiting their money. But how does the judicial system determine what amount to set as bail?
Generally, each state or individual jurisdiction has a predetermined amount required for bail for each individual crime that a person can be charged for. These schedules have various monetary amounts ranging from smaller amounts for misdemeanors to much larger amounts for felonies. This is due to the fact that felonies are typically more serious and dangerous then simple misdemeanors and as such, require more money to guarantee that a defendant won’t try to flee. Typically, a judge will follow the predetermined amount set out in their bail schedule in deciding the bail amount for a defendant. However, although the bail schedule suggests the typical amount of money required for a certain crime, the judge or magistrate has the discretion to follow the schedule, increase the amount, or disregard the amount based on their own judgment.
Although judges or magistrates look to a bail schedule to see what a normal baseline amount for bail is, they also take into account many different factors when setting a defendant’s bail. Some of the more common factors are:
- Seriousness of the crime;
- Whether the crime was extremely violent;
- Whether the defendant is a flight risk;
- The defendant’s previous criminal record or lack of record; or
- The defendant’s ties and relationship to the community;
Release On “Own Recognizance”
A defendant can avoid bail entirely if the judge or magistrate decides that the defendant should be released on their own recognizance. This means that a judge or magistrate has looked at the circumstances of the crime in question, considered any influencing factors, and determined that the defendant will not be in danger of failing to show up to their trial date. Generally, this is seen where the defendant has strong ties to the community, no previous criminal record, or the crime is not very serious or dangerous.
How Do I Post Bail?
After a criminal defendant has been arrested, they are subject to an arraignment or a bail hearing to determine whether the defendant can be set free with or without bail. Generally, most criminal defendants are required to post some amount of bail prior to being released. This amount could range anywhere from a few hundred dollars to several million dollars. So how do you go about posting bail?
Under the 8th Amendment of the Constitution, bail shall not be excessive. Although this seems like it would limit the courts from setting large bail amounts, the courts have only identified two real limitations on bail: it cannot be used to raise money for the government or to punish a person for being suspected of a crime. As such, the amount set for bail is largely up to a judge or magistrate’s discretion. Because of this, for certain crimes, some judges or magistrates will purposely set the bail amounts to high for a defendant to obtain in order to keep the defendant in jail. Although this seems to violate the Constitution, the majority of courts have ruled that large amounts of bail do not violate the Constitution since the power to set the amount for bail is well within the judge or magistrates discretion. Since the Supreme Court has not ruled on this specific question, there are no definitive guidelines in determining what amount of bail is too excessive.
Once bail has been set, the only way the defendant will be released is to come up with the money required by the court. This can be done in a variety of ways:
- The defendant can pay the full amount himself by cash or check;
- The defendant can use some form of property as collateral;
- The defendant can ask for a waiver of the bail by promising to show up for his court appearance; or
- The defendant can obtain a bail bond through bail bondsman;
Generally, unless the defendant has access to a large amount of cash and/or assets, or is able to secure a waiver of the bail by being released on their own recognizance, the defendant will have to obtain a bond through a bail bondsman.
A bail bond is a contract that the defendant signs with a bondsman which states that if the bondsman posts the bail amount, the defendant promises that he will stand trial and will not leave town. Typically, since the bail bondsman is taking a large risk by putting up the amount of money required for bail, the bondsman will require that the defendant provide at least 10% of the bail amount as a non-refundable payment. Additionally, the bond may also require some form of collateral in the form of property like a deed to a car or house. Due to the fact that the bail bondsman has a chance of losing their money if the defendant violates any of the terms of their bail, the bondsman will have a legal right to keep the collateral that the defendant has staked.
If you or someone you know have been charged with a crime, it is important to consult with an experienced criminal defense attorney that can help zealously defend your case. Contact Us at Minick Law, P.C. for a free consultation on your case.
Blake Marcus graduated from Michigan State University College of Law with honors. During law school, Blake completed an internship with the honorable Michelle M. Rick in the 29th Circuit Court of Michigan. His primary practice area is DWI defense. He has completed the NHTSA DWI Detection and Standardized Field Sobriety Testing Course.