A person’s first thought upon landing in jail is often how to get out-and fast. The usual 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 show up, the court may keep it and issue a warrant for the defendant’s arrest.
Getting arrested is an incredibly stressful, confusing experience, both for the person under arrest and their friends and loved ones. And, once taken to jail, there is probably just one thing on everyone’s mind: getting that person back out of jail. So, how is that done?
How Bail Is Set
Judges are responsible for setting the amount. Because many people want to get out of jail immediately (instead of waiting for a day or longer to see a judge), most jails have standard bail schedules that specify amounts for common crimes. An arrested person can often get out of jail quickly by paying the amount set forth in the stationhouse schedule.
If a suspect wants to post bail but can’t afford the amount required by the schedule, the suspect can ask a judge to lower it. Depending on the state’s procedures, a request for lowered bail may be made either in a special bail hearing or when the suspect appears in court for the first time (usually called the arraignment).
The Eighth Amendment to the U.S. Constitution requires that bail not be excessive. This means that it should not be used primarily to raise money for the government; it’s also not to be used to punish a person for being suspected of committing a crime. Remember: The primary 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. (For information on what happens if the defendant doesn’t show up, see Bail Jumping.)
So much for theory. In fact, many judges set an impossibly high bail in particular types of cases, knowing that the high amount will effectively keep the suspect in jail until the case is over. (The U.S. Supreme Court has indicated that pretrial detention on the basis of dangerousness is not per se unconstitutional. (United States v. Salerno, 481 U.S. 739 (1987).)
Conditions of Bail
Bailed-out suspects commonly must comply with “conditions of release.” If a suspect violates a condition, a judge may revoke bail and order the suspect re-arrested and returned to jail. Some bail conditions, such as a requirement that a suspect “obey all laws,” are common. Other conditions may reflect the crime for which a suspect was arrested. For example, a condition may order a domestic violence suspect not to contact the alleged victim.