Bail 101: The Basics

inside of a jail cell

When a person is suspected of violating a law and arrested in California, a number of things can happen. That person (defendant) may simply be given a ticket (often called a citation or cite) by the officer and sent on their way. This is sometimes called “cite and release” and the defendant is released on “OR” (their “own recognizance”). The citation tells the defendant when they must come to court to “face the charges”. This typically happens when a defendant is accused of breaking a law that is an infraction[1] or a less serious misdemeanor[2].

In other cases, a person suspected of committing a crime may be arrested and brought to the police station or jail. In these cases, the defendant may be required to stay in jail until they come to court, they may have the option of “bailing out” of jail and coming to court at a later date, or they may also be released from the jail on “OR”. For defendants who are not given the option to bail out of jail before coming to court for the first time, the judge will decide on a bail amount at the defendants first court date.

What is Bail?

Bail is cash, a bond, or property that a defendant gives to a court. The California Penal Code lists four things for a judge to consider when deciding whether to require bail and, if so, how much bail: (1) the protection of the public, (2) the seriousness of the alleged offense, (3) the defendant’s criminal record, and (4) the probability that the defendant will show up to court as required.[3] Of these 4, public safety is the most important.[4]

How Much Does Bail Cost?

In California, the Judicial Council circulates a “Uniform Bail Schedule”. [5] This is designed to ensure fairness; so that the bail for an infraction or crime in one part of the state is similar in other parts of the state. In San Luis Obispo County, the Bail Schedule is available to see on the County Courts website (https://www.slo.courts.ca.gov/ff/schedules.htm). A judge (or magistrate) can deviate from the recommended bail amount after considering aggravating and/or mitigating factors. What does that mean? Well, it means that the judge can consider information about the defendant or the alleged crime that may make the judge more or less concerned about (1) the protection of the public, (2) the seriousness of the alleged offense, (3) the defendant’s criminal record, and (4) the probability that the defendant will show up to court as required.[6]

What to Do if You Can’t Afford Bail

Since most people don’t have thousands of dollars laying around, it may be difficult to imagine where you would come up with the money or property to get out of jail. This is especially overwhelming when you believe you have been wrongly accused of a crime. In order get out of jail while fighting the charges against them, a defendant may choose to purchase a bail bond from a bail bond company. What does that mean? It’s when a bail bond company signs a contract, known as a surety bond, in which the bond company agrees to be liable for the full bail amount if the defendant fails to appear in court or otherwise forfeits his or her bail (for example: gets arrested for something else while out on bail or breaks some other rule of release). A bail bond company charges the defendant a fee of about 10% of the total bail amount for a bond and is usually willing to arrange a payment plan.

For many defendants, even paying 10% of the total bail amount is unimaginable. For example, if the court sets bail at $25,000, a bail bond may cost $2,500. Thankfully, the California Supreme Court recently decided that "conditioning freedom solely on whether an arrestee can afford bail is unconstitutional."[7] What that means is that people in California can no longer be jailed while awaiting trial solely because they are unable to pay money bail. Defendants are presumed innocent, and judges must consider a defendant’s ability to pay. Judges can't set bail in an amount defendants can't afford unless the judge finds that no other less-restrictive alternative conditions of release can reasonably assure that person's appearance in court or the safety of the community.[8]

Bail issues are one of many pieces to the puzzle when it comes to defending your rights in a criminal case. This is why it is so important to have an attorney on your side who can fight for you; one who is dedicated to every case. Contact attorney Amy Schroder for more information on bail and bail alternatives.

 

[1] In California, an infraction is a violation of a law. Unlike misdemeanors and felonies, infractions are not “crimes” and cannot result in you being sent to jail. Infractions have a maximum fine of $250. Violating basic traffic laws ty

[2] In California, a misdemeanor is a crime with a maximum jail sentence of up to one (1) year in jail and/or a maximum fine of up to $1,000.

[3] California Penal Code § 1275

[4] Id.

[5] The Judicial Council is the policymaking body of the California courts. The council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice.

[6] California Penal Code § 1275

[8] “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial. What we hold is that where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee “solely because” the arrestee “lacked the resources” to post bail.” In re Humphrey https://www.courts.ca.gov/opinions/documents/S247278.PDF