Jail is a special place. Everyone is thinking how to get out of there on the way there if not before.The fastest way to do this is to post bail.

Bail is cash, a bond, or property that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant doesn’t appear when the court calls him, the court may keep the bail and issue a warrant for the defendant’s arrest.

How to Set Bail

Judges are responsible for setting bail. However, it always takes time to see a judge and often it takes more time to get any decision from a judge. To address that, most jails have standard bail procedures that specify bail amounts in accordance with charges. A person who was brought to jail may quickly arrange a leaving upon paying the amount set in the bail schedule.

Now, what if the amount is too high? Is there a way to go around it? Yes, in that case, a suspect may request a judge to lower the amount set forth in the court station bail schedule. The procedures are different in different courts but a special bail hearing is required. The bail hearing may be combined with the first hearing of the suspect.


In recent years, courts have started using math to inform decisions about pretrial release. In these jurisdictions, select information about the defendant is entered into a program and a score or recommendation comes out. These bail algorithms, which consider factors like age and criminal history, are supposed to assess the risk that the defendant will commit another crime or fail to appear in court.


The Eighth Amendment to the U.S. Constitution requires that bail not be excessive. This means that bail should not be used primarily to raise money for the government; neither can it be used to punish a person for being suspected of committing a crime. The main purpose of bail is to allow the arrested person to remain free until convicted of a crime and at the same time ensure his or her return to court.

Having those rules in mind, it is still in a judges sole discretion to set the amount. Many judges set an impossibly high bail in certain cases, knowing that the high bail will effectively keep the suspect in jail until the case is over.  Based on the Supreme Court cases this is not unconstitutional, meaning it is legal and judges can do that.  The primary focus of a judge is justice and safety of others.


Does Bail come with any strings attached or a person who has the money to pay the bail can avoid jail time? There is a strict set of rules known as Conditions of Release. A judge can stop bail at any time if one of the conditions have been violated by the suspect. After that, a judge may order that the suspect returns to jail.  If the suspect does not do that voluntarily, the judge may get him or her arrested again and taken to jail.  Most bail conditions are general, such as obeying all laws. In addition to that, some special conditions may be set, such as not contacting certain people, for example witnesses or victims.


Courts accept more payments than IRS. The list includes:

  • cash or check for the full amount of the bail
  • property worth the full amount of the bail
  • a bond (that is, a guaranteed payment of the full bail amount), or
  • a waiver of payment on the condition that the defendant appear in court at the required time.

A bond that costs 10% of the bail amount may seem attractive in comparison with posting cash bail. However, it is not a good long-term strategy.  If the full amount of the bail is paid, it will be refunded when the case is over and the suspect showed up every time he was supposed to. However, a bond seller’s fee is non-refundable. Also, the bond seller may require “collateral.” This is similar to taking any real estate or personal loan. The person who pays for the bail bond must give the bond seller a financial interest in some very valuable property. If there is no such property, the bond seller may turn down the deal.  In case of a violation, the bond seller can cash in on this interest if the suspect fails to appear in court.


In some cases, suspects are allowed to leave jail on their own recognizance. That means that all they need to do is to sign a promise to show up in court. This often happens when it’s the first time the suspect got arrested for pet it crimes.

It is very common to requests release on using own recognizance at the first court appearance. It does not cost anything extra. The judge may easily deny that. Then, there is still a possibility to request lower bail.

In general, defendants who are released without paying bail must have strong ties to the community. The judge has to believe that it is very unlikely that the suspect will try to avoid prosecution and flee. Factors that help convince a judge to grant an release include:

  • having family members (most likely parents, a spouse, or children) living in the community
  • having resided in the community for many years
  • being employed
  • having little or no past criminal record, or only criminal problems that were minor and occurred many years earlier, and
  • having been charged with previous crimes and having always appeared as required.

These factors are generally relevant for all bail and jail related situations.


To clarify any issues mentioned in this article or any other law related questions, please contact one of our attorneys.  Our list shows the attorneys who are available to take your call right away AND if you or your loved one is already in jail, they can immediately offer professional assistance. ilexapp.com will generate lawyers that are very familiar with the court that is adjudicating your case if you put your zip code or city and state in the search box.  An experienced lawyer may be able to arrange your release or carefully advice on the best way to proceed with your case.

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