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Bail and Bail Bonds

Posted by E. W. Childers | Sep 25, 2019 | 0 Comments

If you are accused of a crime you have the right to be released pending trial on your case unless... well, unless rather a lot of stuff.

Here are some general non-technical categories with examples:

Not So Serious. In truth, you are usually only going to be released pre-trial if the State considers you to be relatively safe (first time offender or limited criminal background) or you are charged with relatively non-serious offenses (like a traffic ticket or a first time offender on a CDS possession charge (a misdemeanor)), a person in this position will be required to post a small amount for bail or may be released on his own recognizance or if he participates in a pre-trial release program where he is monitored regularly.

Serious But Not Dangerous. If your crimes are considered serious but not violent or otherwise shocking (stealing a car, dealing a small amount of CDS, DUI, etc.) and you're not perceived to be a flight risk or otherwise posing an imminent danger to the public then you will be required to post a higher amount for bail or participate in a pre-trial release program where you are monitored regularly.

Serious and Dangerous. If your crimes are considered serious or you're a definite flight risk or an imminent danger to the public then you may still get your freedom before trial if you have a lot of resources at your disposal (money). You will be required to post a large amount of money for your bail. If you manage to post such an amount of money the State (if your assigned prosecutor wants to) may implement various processes to get you back in jail such as asking the judge to raise your bail amount citing new conditions (that they already probably knew or should have known about before they realized you could post the exorbitant bond amount) or the state may add new charges in your case and ask the judge to set a bail amount for each of the new cases.

Capital Murder. A charge like this means you're sitting in jail until trial or plea because the government considers people accused of such charges to be extremely dangerous. Other crimes such as possession or production of child pornography or sex crimes involving children or other shocking or heinous crimes will generally result in the Defendant sitting in jail with an extremely high bond (example: man without a pot to piss in is accused of possessing child pornography, bond is set at $100,000.00, effectively being held without bond.)

Sitting in Jail is Bad

This shouldn't require lots of explanation, but from my point of view sitting in jail awaiting trial is bad because:

  • the Defendant has not been found guilty and is being punished prior to the evidence of guilt being tested and if the Defendant is acquitted (found not guilty) he has lost a significant portion of his life; as a friend put it "he beat the rap, but not the ride"
  • the Defendant is much less able to assist in his own defense when he is sitting in jail (his lawyers have less access to him and he has less access to his own evidence and witnesses), this heavily reduces the chance that he will get a fair trial
  • it takes a long time to get to trial; jail puts pressure on defendants to plead guilty even if the evidence is in their favor, just to get out of jail; after a good long sit in jail prosecutors will often offer some form of probation in exchange for a plea of guilty; the vast majority of Defendants accept such offers despite their prior assertion that they are not guilty of the crime charged against them

Cash Bail

If the Defendant (or more usually a relative) posts the bond amount with the Court Clerk then the Defendant will be released. I don't see this as being a great idea unless the amount involved is small (or relatively small if the Defendant possesses great resources). The reason for this is that if the Defendant fails to appear (potentially for any reason) then he (or grandma or whoever) loses all his money and will be jailed until he posts bail again (in a usually greater amount). A Bail Bond is safer in that missing court does not immediately forfeit (or risk) Defendant's assets. A new bond from a bondsman on the bail amount will still be cheaper than losing the original cash bail.

Bail Bonds

A bail bond is a form of insurance or guarantee that a bail bondsman files with the Court to secure a Defendant's release pending trial. Essentially, the bail bondsman promises to ensure that the Defendant appears for trial on the charges. The Court accepts that promise and orders the Defendant released.

In order to get a Bail Bondsman to post his bond in lieu of the cash bail that has been set for a Defendant the Defendant must find a way to give the Bail Bondsman a payment (usually 10% of the cash bail amount). That payment is non-refundable and is, basically, the interest that the bail bondsman earns for making a promise (a bond) to the Court that he will pay the full bail amount if the Defendant does not return to court for all ordered appearances and hearings.

The decision on whether or not to hire a bail bond company is a personal one. I recommend getting out of jail if possible, but not at the cost of financial ruination, which frequently occurs.

Recognizance Bonds

A recognizance bond (known as an "O.R. bond" or "P.R. bond") is a promise that a court might accept in lieu of any cash bond. Sometimes such a bond comes with a promises to forfeit a certain amount of money if the promise is not honored. Some courts grant these more freely than others. A Defendant generally will not have the opportunity to ask for an O.R. bond until they see a judge for their initial appearance.

Shenanigans and Processes for Keeping a Defendant in Jail

A thing to keep in mind is that for purposes of setting bond and considering changes to bond the Defendant is considered guilty. This sounds unconstitutional since a Defendant is supposed to be treated as innocent until proven guilty beyond a reasonable doubt by a jury of his peers, but apparently it's not since the Constitution also allows for a reasonable bail amount to be set prior to trial. Unfortunately the tension in the Constitution raised by this contradiction (not guilty but still subject to being jailed anyway) is not fully resolved despite efforts such as the right to a speedy jury trial (in the 10th Circuit this issue is not really worth discussion unless the time from charge to trial exceeds about six years).

Keeping that in mind, if the State really wants you in jail it has several techniques it can employ to imprison you prior to trial despite you having posted bail.

  1. Adding Charges. The State can add charges. You post your bond and you are re-arrested the next day because the State has posted new charges. This can be legitimate or illegitimate. You are still bailed out on the old charge but must post a new bond on the new charge. The judge might be lenient about bond in such cases, or not depending on the circumstances. Remember that the law is generally pretty vague and almost anybody could be incarcerated for something. Prosecutors sometimes play games with each other in which one names some famous person (e.g. Mother Theresa) and the other tries to posit charges that they could be charged with (e.g. Human Trafficking or whatever). 
  2. Dismiss and Refile. The State can dismiss your current case and file a new case. You post your bond and your case is dismissed for whatever reason. The state re-files your charges or files a new case with different charges. You are re-arrested and must post a new bond. Example: you post bond and have a preliminary hearing. The State's necessary witnesses do not appear. The State dismisses the case. The State locates the witnesses. The State re-files the charge in a new case. Your bondsman has no legal obligation to post a bond on the new case and may charge you again even though you are still being tried for the same offense. Some judges take umbrage at this occurrence (whether legitimate or a shenanigan) and will grant a bond on personal recognizance, but such umbrage is by no means universal.
  3. Motion to Increase Bail. The State files a motion to raise your bond citing new factors that they state increase the chance that you will not re-appear for court when ordered. This can occur when new crimes are alleged so that in addition to having a bail requirement in the new case the bail requirements of the old case can be increased as well.

Shenanigans and Processes for Getting a Defendant Out of Jail

  1. Pleading Guilty. Very often the State will offer probation in exchange for a plea of guilty. Whether this is legitimate or amounts to a shenanigans depends on whether the Defendant is guilty.
  2. Motion to Reduce Bond. Judges don't generally know much about what's going on in a case, usually they know only the charges on the docket sheet and the bail amount set at arraignment. If the judge trusts the attorneys involved they will often rely on the attorney's determinations of the risks of danger to the public and flight. The attorney sets forth what he knows and his analysis of the factors involved and asks the judge to agree to his request of a reduced bond. The State will set forth what it knows and their own analysis of the situation (including possibly a counter-motion to increase bond). The judge will generally go with the analysis that seems more correct or sometimes split the difference in the middle. In a case with bad facts the bond will be increased and motion to reduce bond will prove to be not only futile, but harmful to the Defendant.
  3. Medical O.R. The Sheriff is obligated to obtain all necessary health care that his inmates require at the expense of the Sheriff's Office. If the Defendant has a medical condition that the Sheriff does not want to pay for, then sometimes the Sheriff will request that the Defendant be released to seek medical treatment. These requests are generally honored unless the crime the Defendant is accused of is particularly heinous.
  4. Rehab. If the Defendant is primarily accused of non-violent crimes and has a serious substance abuse problem that is contributing to the criminal behavior and he has a seat in a bona fide rehab facility then the Court (and sometimes the District Attorney) will be amenable to releasing the Defendant from Jail to the rehab facility. This is an O.R. Bond with conditions (generally, that the Defendant stay in rehab and present himself to the Court or Sheriff to surrender if and when he is discharged from rehab).

* In fairness, I say "shenanigans" partially in jest. These processes rarely feel fair (the deck is definitely always stacked against the defendant just because of the effectively infinite resources of the State compared to virtually any defendant), but that said, I do not personally know of any prosecutors who intentionally abuse Defendants with bail procedures. They (generally) are merely doing the job the system requires of their role as prosecutors. I perceive that prosecutors who relish and use the personal power inherent in their office in an unseemly way generally find their way out of that system before too long, which is a good thing.

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...

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