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.
James Minick is founder and C.E.O. of Minick Law, P.C. James is committed to providing top notch legal services through his team of highly specialized legal professionals. James will defend your rights.