How to Arrange for Bail While in Jail

Four Parts:Understanding ArrestsNavigating Through Your Bail HearingArranging BailRecovering Bail

A person who has been arrested, charged with a crime, and is detained in police custody may be eligible for temporary release while they await trial. In order to be released while awaiting trial, you will have to post "bail," which is a set amount of money paid to the court to ensure you return for all of your hearings and comply with any other conditions set by the court. If you comply with the conditions set by the court, the bail amount will, in most circumstances, be returned to you. If you do not comply with the court's conditions or you do not attend any required court appearances, a warrant will be issued for your arrest and you may forfeit any bail money you have paid.

Part 1
Understanding Arrests

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    Know when you can be arrested. In order for a police officer to make an arrest, they must have probable cause.[1] In order to establish probable cause, an officer must be able to point to objective evidence leading them to believe a suspect committed a crime.[2]
    • Remember, being arrested does not mean you have committed a crime. If you are in this position, stay calm and post bail if and when you are bale to.
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    Think about booking procedures. After you have been arrested, you will be taken to the police station for a process called "booking." During the booking process, law enforcement will take your personal information (name, date of birth, and physical characteristics); take notes about the alleged crime; perform a criminal background check; take fingerprints; take photographs; search you; confiscate most of your personal belongings; and place you in jail.[3]
    • At this point, your main objective should be getting out of jail.[4] In order to do so, you will have to go to a bail hearing and post bail.[5]
    • In some circumstances, if the alleged crime is minor, after booking, you might be released without posting bail as long as you promise to attend your court hearings.[6]
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    Understand your constitutional rights. If you are ever arrested, there are a few things you should know prior to attending your bail hearing. If you understand your constitutional rights as they relate to being arrested, you may be able to be released without ever having to post a bail payment.
    • Most importantly, when you are arrested, you always have the right to remain silent and you have the right to an attorney.[7] When you are arrested, you will be told about these rights.
    • Also, you will need to be promptly charged with a crime or released.[8]

Part 2
Navigating Through Your Bail Hearing

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    Learn if you are eligible for bail. While most individuals are afforded the opportunity to post bail and be released from jail pending further legal proceedings, this is not always the case. In some circumstances, bail will not be offered to you at all. This might be the case if you: might be a danger to the community; are likely to flee; are charged with a serious and violent crime; are charged with a crime that is punishable by death; might obstruct justice; or are a repeat felony offender.[9]
    • You will learn whether you are eligible for bail during your bail hearing. There, the judge will look at the alleged crime, your criminal past (if you have one), as well as other factors that may inform your flight risk.
    • You may also learn if you are eligible for bail while in jail. There, you may be offered the opportunity to post bail by looking at a bail schedule or by being released on your own recognizance.
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    Know when your bail hearing will take place. Generally, initial court appearances occur within 48 hours of arrest.[10] At this court hearing, sometimes called an arraignment, initial appearance, or a bail hearing, a judge will, among other things, determine if you are eligible for bail and, if so, what the bail amount will be set at.
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    Consider posting bail before your initial court appearance. Most jails will have a bail schedule posted, which will specify bail amounts for specified crimes.[11] It may be possible to determine your bail amount by looking at the bail schedule and post bail before you ever step into court for your initial appearance.[12] Jailhouse bail schedules, unlike bail schedules in a judge's possession, are inflexible.[13] If you want to post bail before you go in front of a judge, you will have to post bail in the full amount specified in the bail schedule.[14] If you want your bail reduced, you will have to attend your bail hearing.[15]
    • In addition, if you have been charged with a misdemeanor (as opposed to a felony), there is a possibility that you will be released on your own recognizance without having to attend a bail hearing. If this is the case, you will likely be required to sign a statement saying you will show up for all of your required court hearings. If you fail to attend any court hearing, a judge will likely issue a warrant for your arrest.
    • Also, some jails offer duty judges. A duty judge will fix bail over the phone without you ever having to attend your bail hearing.[16]
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    Decide if you will utilize an attorney. When you are arrested, or while you are in jail, you may want to request an attorney. If you cannot afford an attorney, you will be appointed a public defender. An attorney can help immensely in convincing a judge to allow for bail and/or have the amount of bail reduced.
    • If you choose to consult with an attorney at this early stage of the legal process, try and find an attorney who specializes in bail hearings. While most criminal defense attorneys can competently navigate this proceeding, some attorneys are better than others.
    • While hiring an attorney is always advisable, it certainly is not required. You will be able to post bail whether you have an attorney or not so long as you find a way to collect the required funds.[17]
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    Understand how bail is set. If you are in your bail hearing and you know you are eligible for bail, you will need to know how bail is set. Knowing how bail is set will help you plead your case for the lowest amount of bail possible. In addition, the 8th Amendment to the United States Constitution prohibits excessive bail.[18] Therefore, a judge will have to set bail within the parameters set forth by precedential court cases. In general, a judge will look at the following factors when setting bail:
    • Precedent, which means the amount of bail that is customary for a given alleged criminal act.[19] For example, bail may generally be set at $500.00 for shoplifting in a certain jurisdiction.
    • Bail schedules, which are adopted by judges and commonly used to determine bail amounts.[20] A bail schedule goes through common sets of circumstances and educates a judge on how bail might be set.[21] For example, a bail schedule might tell a judge how to determine bail if a defendant has been booked on more than one charge arising out of a single act.[22]
    • The seriousness of the alleged crime.[23]
    • Your past criminal record.[24]
    • Whether you are employed.[25]
    • Whether you have close ties to family and the community.[26]
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    Listen for any conditions a judge imposes. In addition to a set amount of money required to get out of jail, a judge, during a bail hearing, may require you to follow certain rules if and when you are released before trial. If conditions are imposed, a judge is required to impose only the least restrictive conditions necessary.[27]
    • Common conditions include: maintaining or actively seeking employment; following travel restrictions; avoiding contact with victims and witnesses; checking in with the police; following a curfew; avoiding weapons; and not using any drugs.[28]
    • If you fail to comply with any conditions imposed, you may be penalized financially and you may be required to report back to jail.[29]
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    Contemplate including witnesses. Now that you know how and when bail is set, you may want to consider contacting potential witnesses to speak on your behalf. During your bail hearing, you may have the opportunity to present evidence that could convince a judge to reduce the amount of bail imposed. Common witnesses include:
    • Family members;
    • Current employers;
    • Landlords;
    • Clergy;
    • Teachers;
    • Doctors; or
    • Counselors.[30]
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    Assess the outcome of your bail hearing. After the judge has heard all of the evidence, including any argument you may have for being released on your own recognizance, or for the reduction of your bail, they will make a bail determination.[31] In general, the following outcomes are possible:
    • Bail may be denied if you are unlikely to return to court or if you pose a danger to the community.[32]
    • You may be released on your own recognizance.[33]
    • You may be released on an unsecured bond, meaning you will not have to pay anything up front but if you do not return to court, you will be required to pay the amount of the bail.[34]
    • A cash bail amount may be set, meaning the amount you would need to pay in full if you want to be released.[35]
    • A bail bond amount may be set, which is an amount you would need to pay a bail bondsmen in order to be released.[36]
    • Conditions may be attached to any of these options as well.[37]

Part 3
Arranging Bail

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    Pay bail immediately after the bail hearing, before going back to jail. If you are well prepared, you may have the ability to post bail before even going back to jail. For example, in New York, bail can be posted at the court so long as it is done with cash.[38] In Manhattan, there is a program that allows defendants to post bail using credit cards in some circumstances.[39]
    • In this case, you will still need to post bail using your own assets, using friend and family assets, or using the services of a bail bondsmen. The only difference between posting bail at the courthouse and posting bail in jail is the location you make the required payment.
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    Post bail using your own assets. After your bail hearing where your bail amount was set, you will be back in jail and you will be afforded the opportunity to post bail if you are able. While in jail, your first option for posting bail is to use your own assets. While this may seem straightforward, due to the fact you are in jail, it can often be difficult to access those personal assets. In New York, city jails will accept bail payments in the form of cash and sometimes checks.[40] In addition, New York jails allow you to post bail through your jail account.[41]
    • If you are using cash or check, you will need to have a friend or family member collect the bail money for you and bring it to the jail where you are being held. If you are using a jail account, you will need to contact someone with access to your money and have them transfer it into your jail account. For example, if the amount of your bail is $10,000, you can call a friend and ask them to bring the $10,000 cash you have under your bed. When your friend brings this money to the appropriate location, you will be released from jail.
    • In some circumstances, you may be able to pledge property (i.e., use your property as collateral) in order to post bail.[42] If you are able to do this, your property will be recorded with a lien and, if you fail to meet the requirements necessary to get your payment back, your property may be seized and sold. If you use property to satisfy bail, the property will generally have to be worth about 250% of the amount of bail. Again, you will have to arrange for this from jail, so it is going to be necessary to invoke the help of friends in family in order to successfully pledge property in order to make bail. Depending on the amount of bail required, you may be able to use anything from a vehicle to a home to satisfy a bail requirement. For example, if your bail is $100,000, you may offer your home as collateral in order to post bail. In this case, a lien will be recorded on your property and if you do not show up for court, the state may foreclose on your home and sell and collect the proceeds.
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    Ask your family and friends to help. If you cannot afford to post bail on your own, you may have to call friends and family to ask for their help. If this is the case, your friends and family will have to pay bail in the same manner as if you were paying with your own assets. The only difference is the source of the money or property.
    • When you call your friends and family to ask for their help, be sure you give them detailed instructions on how to post bail. This includes telling them the amount of bail, the required method of payment, where it can be processed, and when it needs to be done by.
    • Be sure you tell your friends and family about the commitment they are making by helping you with bail. Make sure they understand the risks involved, which includes the possibility of losing their assets they provide to you.
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    Pay bail through a bail bondsman. If you cannot afford bail, or if you do not have easy access to the required funds, you may choose to use the services of a bail bondsman in order to post bail.[43] However, some states, including Illinois and Kentucky, do not allow bail bondsmen to do business.[44] In these states, you will usually be allowed to post a percentage of bail yourself in order to be released.[45]
    • With a bail bond, the bondsman agrees to pay the full amount of bail to the court if you do not show up to court as required.[46]
    • In exchange for posting a bond, the bondsman collects a non-refundable fee from you.[47] This fee is generally about 10% of the amount of bail.[48]
    • Also, there is usually a third party contract, which requires a friend or family member to pay the bond if you do not show up to court.[49]
    • For example, assume your bail is set at $100,000. If you go to a bail bondsman, you will be required to provide them with 10% of the bail, which would be $10,000. Once you pay the bail bondsman the $10,000, and once the bail bondsman receives a promise from a third party to pay them any amount they have to pay the court, the bail bondsman will post bail and you will be released.

Part 4
Recovering Bail

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    Determine when you are eligible to get bail payments refunded. If you or a friend or family member paid your bail in full, you will be eligible to recover your bail money from the court once your case has been completed and you have made all required court appearances.
    • In addition to making all required court appearances, you will also be required to meet any conditions of your bail. For example, if one condition of your bail was to stay away from the victim, and it was found that you had multiple encounters with the victim, your bail might be forfeited.
    • If your bail is forfeited, you will not be able to retrieve it. In limited circumstances, you may be able to file an action to get your bail money back. For example, in New York, there is a procedure called "remission of forfeiture."[50] During this proceeding, you will have to convince a judge you had a valid reason for missing a court date or for disobeying a condition of your release.[51] If you can do this, bail might be returned to you even after it has been forfeited.
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    Know how much you will get back. How much money is returned to you will depend on how you paid bail. If you posted bail using cash, the court will return the full amount to you.[52] If you posted bail using property, the property will be returned to you but any fees associated with the process will not be refunded (e.g., the cost of recording a lien).[53]
    • In New York, once you have satisfied all requirements, the judge will issue an order for the return of bail.[54] A check will be issued to the person who made the payment.[55] However, if you were convicted, 3% of the bail payment will be kept by the government.[56]
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    Understand what happens if you use a bail bondsman. If you use a bail bondsman, no money will be returned to you.[57] The 10% you paid the bail bondsman is considered a non-refundable fee.[58]

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Categories: Criminal and Penal Law Procedure