Differences In Bail Laws By State

When a person is convicted under a felony, one of the first things a convicted person might look forward to is getting bail. Though it can be very beneficial, bail comes with its own regulations and rules that must be adhered to. There are different bail laws by state that a person who gets arrested must be aware of as well.

But as previously stated, there are many benefits to bail services including:

  • Saving money: There are different bail laws by state, but no matter where a person is convicted, this is one of the most important benefits. This is because a convicted person only has to pay a fraction of the amount required by a judge.
  •  There are two kinds of bail bonds: cash bail and surety bail. The first requires a cash payment that guarantees a defendant will show up to a trial. The second one enlists the services of bail bondsmen, contacted by a friend or relative of the defendant. The bondsmen are backed by a surety company and pledges to pay a bail amount in full if the accused person doesn’t appear in court.
  • Peace of mind: By working with bail bond services, a defendant can focus their attention elsewhere. By having peace of mind, a defendant can spend more time making good decisions and acting on the advice of their attorney.
  • Ability to work: Posting bail also allows a defendant the ability to keep working as they prepare for their trial.
  • Planning for the future: If a defendant has committed a crime and believes he or she will be found guilty, posting bail allows the luxury of having time to plan for the future. The probability of winning and losing is always the same and a defendant needs to think about all possibilities of what their future may hold.

Regardless of what crime has been committed and where it’s been committed, all those charged with a crime have a right to bail. In fact, the United States’ Constitution’s Eighth Amendment provides defendants the right to reasonable bail and to not be subjected to cruel and unusual punishment.

It’s important to note that while there are different bail laws by state, most states support a form of bail bond system. There are some exceptions and those include laws in Wisconsin, Oregon, Kentucky, Illinois, Maine, Nebraska, and Massachusetts. The reason these states are the exception is because they have alternative systems in place:

Let’s examine some of the different bail laws by state:

Maine

In Maine, defendants are entitled to bail determined by a bail commissioner. But if the defendant misses a scheduled day in court, the bond amount can be forfeited. In Maine, defendants pay nothing for a pretrial release assuming they are able to make scheduled court dates; exceptions to this include felony sexual assault and felony assault. Another option for defendants is a surety bond, where in-state property is put up that matches the value of the bond.

Nebraska

Next up on the list of different bail laws by state is Nebraska, where a jail acts as a bail bond agency. At the time that bail is set, defendants have a choice of paying a non-refundable fee that matches 10% of the amount of the bail. That non-refundable fee goes to the jail. During the pre-trial release period, the state sometimes appoints a person to monitor the defendant through means such as phone calls and personal visits.

Oregon

Bail bonding works the same here as in Nebraska where the jail takes on the role of the bail bondsman. A defendant’s release can be secured by paying an amount equal to 10% of the bond. The difference between Oregon and Nebraska is that if a defendant makes all their scheduled court appearances, more than 80% of the bond fee is returned. The rest helps cover various court costs.

Illinois

As you’ve read, there are many different bail laws by state, but Illinois law has one of the strictest systems against private bail agents. In fact, bail bond agents are banned. In addition, attorneys and some employees of the state cannot post a defendant’s bail.

One might assume that bail doesn’t exist in Illinois, but pretrial release money has to be directly paid to a circuit court clerk where the trial is to take place. If a defendant is to pay bail, Illinois uses the 10% rule as mentioned above.

Massachusetts

Of all the different bail laws by state, Massachusetts has laws that truly are different. How is that? Massachusetts used magistrates who preside over a defendant’s first court appearance. For those defendants deemed to be releasable, they have to pay a fee of $40 to the court. In some cases, the defendant is released on their recognizance, but a defendant can also pay cash equal to the bond amount.

Kentucky

Believe it or not, Kentucky, in 1976, was the first state to ban commercial bail. So for those looking for bail advice, there are several options available to secure a pretrial release. First, a family member or friend of the defendant can offer cash for the full amount of the bail; it should be noted that this is usually advised for minor offenses. In cases with more severe offenses, Kentucky uses the 10% system and bail is paid directly to court. Another option, similar to Maine, is one where defendants can put up in-state property equal to twice the amount of the bond. In situations where a defendant misses a court date, the state then places a lien on that property.

Wisconsin

Wisconsin doesn’t have a commercial bail bond industry, but friends or family of a defendant can put up 10% of the bond amount.

Georgia

In Georgia, courts work in sync with bail bondsmen and the commercial bail bonds industry to manage and enforce the state’s bail system.

Different Types Of Bail

While you’ve read about different types of bail laws by state, what you might not know is that there are also different types of bail. Additionally, there are some states that are exploring alternatives to the bail bond system for a variety of reasons.

Different types of bail include:

Surety Bonds

As a review, a surety bond is a type of bond where a third party agrees to take on the bond of a defendant. In many cases and in many states, a bail bondsman provides this service.

Recognizance

When a defendant is released on recognizance, it means that they have promised to attend all their scheduled court hearings and will conduct themselves in a proper manner.

Percentage Bail

This is simply the 10% rule that you’ve read is applied in many states, where 10% of the bail amount is paid by a defendant, a friend or a family member to a county clerk.

Unsecured Bail

This is a little different than being released on recognizance because a defendant is released with any kind of deposit, but has to pay a fee if they breach the terms of the bail.

Cash Bonds

Bonds must be paid in cash only and such stipulations are set by a court because the court believes that a defendant may be a flight risk or a defendant has failed to show up in court, resulting in a warrant being issued for unpaid fines.

Immigration Bonds

If a defendant has been arrested as an illegal immigrant, this type of bond is used. This usually applies to federal cases and the defendant often deals with the Department of Homeland Security. Since immigration cases deal with federal law, a federal criminal defense lawyer or an immigration attorney is often defendants an accused person.

Citation Releases

This is also known as a Cite Out and is a situation where an arresting officer issues a citation to someone being arrested, informing them that they must show up in court on a particular date.

Property Bond

As you’ve read about in states like Maine, this is a scenario where a defendant puts up property that has a value equal to that of the bail in order to secure release. If the defendant fails to show up in court, the state can levy or even institute proceedings of foreclosure against the property put up in order to recover the bail.

What Happens When You Can’t Pay Bail

While there are different bail laws by state and many different types of bail, there may be times when the establish bail amount in a criminal case is very difficult for a defendant to pay. In fact, more than 50% of all people currently incarcerated are folks who are awaiting trial; in many cases, those folks just have not been able to make bail and may have been incarcerated for months or even years.

When bail is set in a particular case, it’s based on many factors including the seriousness of the charges, a defendant’s record, and whether or not the defendant is a flight risk. But in many courts, the amount of bail set can be based on procedure and precedent; for example, bail may be set at $1,000 for minor crimes and $100,000 for major crimes like felonies.

If a defendant cannot pay bail, there are several options they can use:

Requesting A Lower Bail

In some cases, a defendant can request a lower bail amount through their legal representation such as an accidents attorney or criminal defense lawyer. If the bail is found to impose economic hardship on the defendant or it is deemed excessive, then it may be lowered. Such a request is typically made during a bail hearing or an arraignment.

Using Collateral

As you have read, a defendant can put up collateral to secure the cost of a bond and that usually involves real estate. But there are other options when it comes to collateral. A defendant can, for example, use a valuable car as collateral or other property or items of high value. In this way, a defendant can put up their items to secure a bond without having to sell them or start liquidating their assets.

Going To Prison And Being Released

It’s important to remember that whether it’s a case involving money laundering or personal injury law or even taxes, posting bail or having the opportunity to post bail doesn’t guarantee that a defendant will avoid time in jail. Depending on the severity of the crime and a defendant’s record, a judge, and possibly a jury, may decide that a defendant has a debt to pay to society.

Looking toward the future, a prison sentence may offer a defendant a chance to be released before they have served the entirety of their sentence. If, for example, a defendant is arrested and later jailed on drug charges, a judge may recommend a family intervention where the defendant ultimately seeks help at an addiction treatment center where they can get clean and re-enter society, perhaps under a probation period.

A defendant may also be placed under house arrest or fitted with a tether, so they can be monitored, but still able to spend time with their family go about normal life. Depending on the severity of the crime, the court may recommend an accountability partner for a defendant, who can monitor their progress once they’ve been released and can help keep them on the right path.

In Conclusion

While there are many different bail laws by state, many of them are designed to help an accused person charged with a crime stay out of jail. Whether a defendant needs to ask a judge to lower a bail amount, a family member or friend pays 10% of the bail amount, or something of value is put up as collateral, there are no shortage of options for paying bail, no matter what type of case is involved. For any defendant, the best thing to do is look up bail laws in their state and plan their next moves accordingly, so that they can pay bail and move forward.

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