Bail – Release from Custody

The Eighth Amendment to the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishment. Article I, Section 21 of the Missouri Constitution guarantees the same thing. The text of both the US and Missouri Constitutions state:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"

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The Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious. The Supreme Court has also permitted "preventive" detention without bail. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil." In Stack v. Boyle, 342 U.S. 1 (1951), the Supreme Court declared that a bail amount is "excessive" under the Eighth Amendment if it were "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial.

Denying freedom is profitable. Insurance companies make around $2 billion annually from bails. The American Bail Coalition, a trade association made up insurance companies that underwrite bail bonds voiced opposition to the new Missouri Supreme Court bail rules. 

The procedures for getting out of jail while your case is pending vary from state to state and from county to county. The vocabulary terms vary between different jurisdictions. However, the following options commonly available:

  1. The officers at the police station or jail may release you, on a promise to appear (sometimes called a citation, summons or ticket).
  2. If you’re not allowed a promise to appear, you may be able to get out of jail by posting bail.
  3. If you can’t afford the initial bail amount, you can wait until you’re taken to court, where you can ask the judge to lower your bail or release you on your own recognizance.

Missouri Revised Statutes Chapter 544 concern Arrest, Examination, Commitment and Bail. You may want to pay particular attention to sections 544.455, 544.457, 544.470 and 544.671.

Promise to Appear: The best type of release from custody is when you simply sign a promise to come to court, without having to put up any money. It’s usually a form that looks like a traffic ticket, offered by the law enforcement agency that detained or arrested you. You can be released on a promise to appear at various stages: at the scene of the arrest, at the police station, or at the jail. Generally speaking, officers aren’t permitted to release you on a promise to appear if you’re charged with a felony or acts of violence, or if you have a warrant or an immigration hold.

Bail: Bail is money that you (or people acting on your behalf) pay to the court, to be forfeited if you don’t appear at scheduled hearings. In most places, there’s a list of standard bail amounts for misdemeanors and lesser felonies. So, if you can pay the pre-set bail for whatever you’re charged with, you get out of custody right away, without waiting to go before a judge. Most jails accept bail 24 hours a day. The jail may require that bail be paid with cash, cashier’s checks or money orders, but some jails take credit cards (call first and ask). When the case is over, the bail money is returned. However, in some circumstances, the judge can apply the bail money to fines or restitution (especially if the defendant used his own money for the bail). Check with a local lawyer or bail bondsman to make sure you know how bail is handled in your jurisdiction.

Own Recognizance: Release on your own recognizance is the same as a promise to appear, but it’s granted by a judge rather than by the police. The judge accepts your word that you’ll come to court, without demanding bail. There is considerable variation in names for this procedure: own recognizance (OR), release on your own recognizance (ROR), personal recognizance (PR), etc.

Generally, release on bail or on your own recognizance involves a degree of court supervision. The conditions may include restricted travel, stay-away orders, and periodic reporting to a supervising officer.

In nearly all jurisdictions, minors are not entitled to bail. If a minor is released while a case is pending, it will normally be on his own recognizance under court supervision.

Preparing for a Bail Hearing

A bail hearing is any court appearance at which you ask the judge to release you from custody pending the outcome of your case. It’s still called a bail hearing, even though you may be asking for release on your own recognizance, rather than bail. Often, a bail hearing is just part of a longer hearing involving other procedures, such as entering a plea or arguing a motion. You can have multiple bail hearings, and persistence pays off: sometimes a judge finally decides to let you out of jail at your fourth or fifth bail hearing. It helps, of course, to present new evidence or arguments each time you request release.

To be released, you’ll have to persuade the judge that:

  1. you’re not a danger to the community; and
  2. you’re not a flight risk.

Certain factors make it tougher—and sometimes impossible—to get out of jail. The judge is less likely to order your release if you:

  •  have an outstanding warrant
  •  got arrested again while you were already out on a promise to appear, bail, or OR
  •  are on probation or parole
  •  have failed to appear for court dates in the past
  •  have immigration problems
  •  were arrested for a violent crime
  •  were arrested with weapons in your possession

On the bright side, there are easy ways to improve your chances at a bail hearing. The main task is to supply your lawyer with proof that you’re not a flight risk. Your lawyer will be arguing to the judge that you have long-term ties to the community, and therefore you wouldn’t just leave and never come back. So you (and the family and friends who are helping you) should look for witnesses and documents that might assist your lawyer in convincing the judge that you won’t skip town.

Communicating at a Bail Hearing

Generally, your lawyer will do the talking. If you try to speak to the judge without being directed to do so by your lawyer, the judge will be annoyed. So, it’s important that you tell your lawyer about your ties to the community and any negative factors before your case is called.

Although you won’t be speaking, the judge will look carefully at you, trying to tell whether you’re reliable. Therefore, your facial expression and body language count for a great deal. Of course, if you were arrested the day before, you’ll probably be feeling upset, sleep-deprived, and ill. But you’ll only be in court for five minutes, so for that window of time, you’ve got to pull yourself together and look dependable and alert. Try to tidy yourself, before entering the courtroom. Don’t look angry, even if you were wrongfully arrested. Don’t let your gaze wander, but keep your attention focused on the judge. Don’t cross your arms over your chest (which looks challenging), but stand up straight and behave with respectful dignity.1

Remember, you’re not allowed to fight your case at the bail hearing. Your lawyer may point out weaknesses in the prosecution’s claims, in arguing that bail should be reduced, but the judge won’t listen to the story of what really happened. The only issue being decided is whether to let you out of jail; that is, what it will take to make sure you come to court.

Witnesses for a Bail Hearing:

  • Relatives, especially parents and children
  • Employers or business partners
  • Landlord
  • Religious professionals (minister, priest, monk, nun, rabbi, imam)
  • Teachers or professors
  • Counselors

The witnesses (and even the people who are simply there to show support) should be conservatively dressed, not wearing gang colors or t-shirts with slogans on them. The people who speak or write letters on your behalf must be able to say that they know you well and that you’re a reliable person who will surely come to court whenever you’re supposed to. It does more harm than good if a character witness says hesitantly, “Well, I kind of know him, and I think he’d probably come to court…”

Being positive and assertive is particularly important for families who are trying to keep custody of a minor who’s been picked up for criminal activity.2 Before a detention hearing in juvenile court, family members should talk with the minor’s lawyer about how to convince the judge to let their kid come back home. In court, the family should firmly promise to help the young person follow whatever rules and programs the judge sets up. If the family members don’t speak with confidence, the judge may feel that they don’t have enough commitment or enough parenting skills to provide adequate structure for the minor.3

Documents for a Bail Hearing

  • deed or lease, rent receipts, utility bills, phone bills (both
  • current bills and very old ones, to show the span of time you’ve been at this residence)
  • employment contract, pay stubs, records of volunteer work (both current and old records)
  • school i.d., school records
  • proof of membership in community organizations or church
  • character reference letters from employers, landlords, religious professionals, teachers, and counselors (saying only that you’re a reliable person who will surely come to court, not discussing the case itself)
  • list of character references with phone numbers
  • letters on doctor’s stationery about any medical conditions or appointments that necessitate your release (saying, for example, that you’re scheduled to have surgery next week)

It’s good to provide the original of each document (for the judge), plus three copies (for the prosecutor, the defense attorney, and yourself). Obviously, it can be very difficult for friends and family to run around trying to assemble these materials while you’re sitting in jail. It makes a lot of sense to keep such papers organized in a safe but accessible place so that you can tell people where to look.

Official Reports for Determining Release on Your Own Recognizance

In some places, there’s an agency that creates reports for the court concerning the defendant’s community ties, to help the judge decide whether or not to release him on OR. The people preparing these reports may be part of the probation department, part of pretrial services, or from an outside organization. Generally, they meet with prisoners who’ve just been arrested but haven’t yet been to court and ask questions about address, length of residence, employment, etc. They’ll want phone numbers, so they can call and confirm the information you provide. Naturally, cooperating with such a report is to your advantage. It’s helpful if you’ve been able to call your friends and family, to have them locate the phone numbers you’ll want to give this interviewer. It’s also important to let people know that they should go ahead and speak to whoever calls concerning the report. The one danger here is that you, or one of your contacts, might be talking to a police detective or other law enforcement agent, by mistake. So make sure that the person who’s asking you questions is just preparing an OR report. The individual should have appropriate identification, and should not be asking questions about anything other than community ties and character references. Unless you’re absolutely sure you’re talking to someone who’s preparing an OR report, say the Magic Words: I’m going to remain silent. I would like to see a lawyer. The worst that can happen, if it turns out that the interviewer was legitimate and you didn’t answer his questions, is that you’ll have to get your friends and your lawyer to provide this sort of information to the court, instead of relying on the report. If you have a good support network, they can be more effective than any agency in assembling material to prove your community ties.

Last Minute Preparation for a Bail Hearing

If you’re about to appear for a bail hearing and there’s been no OR interview and no time to assemble witnesses or documents, at least ask your attorney to call your relatives, employer, landlord, school, etc. That way, your lawyer will be able to tell the judge that she’s made these calls and verified your address and that you’re employed, paying rent, attending classes, etc. There may only be a few moments in which to undertake this task, so work on getting the names and phone numbers ready to give your lawyer.

  1. This is a good opportunity to see whether you have any latent telepathic skills that might manifest during an emergency. Transmit loudly and clearly: "I am not a flight risk, I am a pillar of the community," or thoughts to that effect.
  2. In most jurisdictions, there's no bail for juveniles. so the family must concentrate on persuading the judge that they will make sure the minor comes to court since they can't just "ransom" him.
  3. If family members feel they must yell at their kid, they should do it someplace other than the courtroom or the hallway of the courthouse.

Working With a Bail Bondsman

Bondsmen make a living by lending people money for bail.1  Normally, defendants (or their friends or family) pay a bondsman 10% of the total bail for making this loan.  This 10% is the bondsman’s fee—it’s not given back when the case is over.

For example, if your bail were $10,000, you’d pay $1,000 to the bondsman.  Then the bondsman would give the court a “surety bond” for $10,000.2  As long as you made all your court appearances, the surety bond would be dissolved at the end of the case.  So the bondsman’s profit would be the $1,000 you paid him at the outset.  However, if you skipped town and weren’t caught, the bondsman would have to pay the court $10,000.

So bondsmen won’t agree to make bail for just anyone—they look at the very same factors, positive and negative, that judges consider in evaluating a defendant for bail.  Also, bondsmen much prefer to have a co-signor to the bail contract.  The co-signor is a relative or friend who promises to pay the entire amount of the bail (reimbursing the bondsman for the surety bond) if you go on permanent vacation.  The bondsman is a surety to the court, and the co-signor is a surety to the bondsman.

Before calling a bondsman, have all your information ready (character references, phone numbers, credit card numbers, bank account numbers, etc.), so that you can make the phone call as efficient as possible.  If you’re calling from jail, you may have very limited time to use the phone, so you’ll need to be well-organized (and this will also be a point in your favor with the bondsman).

Bondsmen often require collateral, in addition to 10% of the total bail.  The collateral is returned to whoever provided it, once the case is concluded and the surety bond is dissolved.  Collateral can be a piece of land, a house, a business, stocks or bonds, a life insurance policy, a vehicle, or even jewelry.  Some bondsmen will only accept liens3 on land or houses.  It’s important to realize that collateral is forfeit if the defendant skips town.  For example, if someone’s house is put up as collateral and the defendant disappears, the house can be seized.4

Collateral can also be cash, which is always acceptable.  Cash collateral is money paid to the bondsman, beyond his fee.  The bondsman returns the cash collateral, once the case is over (unlike the fee, usually 10% of the total bail, which the bondsman keeps).

If defendants refuse to come to court or if they run away, they can be arrested and kept in custody by the bondsmen and their “recovery agents” (bounty hunters), who then turn the defendants over to the authorities.

Note that most bondsmen charge an additional fee (another 10% of the total bail) each year, because they have to renew the surety bond.  So if the case drags on for more than 12 months, and many do, you might have to pay the bondsman more money.  Check with your lawyer about alternatives, such as getting the bail reduced or “exonerated” (terminated), or posting collateral with the court.  Start dealing with this at least a month before the year is up so that you won’t be rushed.

Bondsmen don’t always charge 10% of the bail as their fee.  Sometimes they can charge a lower rate, such as 8%, if the bail is very large, or the defendant has a private attorney or is a union member, etc.  The range within which bondsmen can set their fees is governed by state law.  Definitely, check with your lawyer if the bondsman is quoting you a rate that’s over 10%.

Bondsmen are licensed by the state in which they operate.  If the bondsman’s license number isn’t on his business card or paperwork, ask to see the license before doing business (this is understood as common sense, not rudeness).  Make sure to read and keep copies of all the paperwork you do with the bondsman, especially the documents you sign.

When should you seek the services of a bondsman?  The answer depends on several factors:

Can your friends and family can make bail themselves, instead of going through a bondsman?  It’s possible to save lots of money this way since the bondsman’s 10% fee is non-refundable—even if the charges are dismissed as soon as the defendant gets to court.5

Can a lawyer get the bail lowered?  Most private criminal defense lawyers will talk to you for free for a little while, as both parties need to have some discussion to decide whether or not to work together.  One of the important issues to bring up is whether the lawyer thinks the judge will reduce the bail.  Say the initial bail was $100,000, but at the bail hearing, the lawyer gets the judge to lower it to $20,000. By waiting for the hearing, you’d have saved a lot of money.  If you were making the bail yourself, you’d have kept $80,000 from being tied up.  And if you were going through a bondsman, you’d have saved $8,000 (because you’d pay the bondsman $2,000 instead of $10,000).

Can you stand to stay in jail for a while?  Generally, to get the bail lowered, the defendant will have to remain in jail for a day, or perhaps several days, until the bail hearing.  Some people feel they can stick it out, while others need to be bailed out immediately.6 Explain your priorities to your friends and family, so they don’t just assume what you’d want.  If their resources are really limited, make sure to tell them whether to spend money on a bondsman, a lawyer, or neither.

1.   Four states—Illinois, Kentucky, Oregon, and Wisconsin—do not have bail bondsmen.  They still have bail, but their legislatures have prohibited the business of making bail bonds.  Some of these states do allow the payment of 10% of the bail, rather than the whole amount, but it goes to the court, not to a bondsman.

2.   Surety is derived from the same Latin root as the word "insurance."  In this context, a surety is a person's who promises to pay a loan, if the actual debtor fails to do so.

3.   A "lien" is the right to take possession of a particular item of property if a debt isn't paid.  For example, if a house is being used as collateral for a bail bond, the bondsman will "take a lien on the house."

4.   People who put up bail or collateral really can lose everything when a defendant skips town.  Too many grandmothers have ended up broke and homeless this way.

5.   Watch out, however, if you use a credit card to pay the bail.  The interest rates on credit cards can be very high, so it's important to pay the balance or get it transferred to a card with a low-interest rate if the case isn't going to be resolved right away.

6.   A little time in jail can be a golden opportunity to gather material for the best-selling book you plan to write.

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