- Release Options
When Bail May be Granted
- Who Sets Bail
- Who May Accept
Right of the Surety and Bail Agent to Pursue Principal
Who Has Fled
- Information for Attorneys
- Information from the California Dept. of Insurance
When an individual is arrested for a crime, the person is
typically taken to a local detention facility for booking prior
to incarceration in a lock-up station or county jail. Once
arrested and booked, the defendant has several options for
release pending the conclusion of his or her case.
The Bail system is designed to guarantee the timely appearance
of a defendant in court. Bail is also an insurance policy for the
state that the defendant will appear to face charges. Further,
the legal intent of release on Bail is not to relieve the
defendant of obligations except for appearing, it is the
retention of control over the defendant to the end that justice
might be administered.
There are five basic Release Options:
Cash Bond requires an individual to post the total amount
of the Bail (not just 10%) in cash. The court holds this
money until the case is concluded. If the defendant does not
appear as instructed, the cash bond is forfeited and a bench
warrant is issued. In this case, the defendant may be his or
her own guarantor.
Note that recent federal laws restrict cash bails in cases
involving narcotics. In these cases, all cash or assets used
to secure a Cash Bond or Surety Bond must be proven to have
not originated from narcotics trafficking before bail is
The Surety Bond is a series of contracts which guarantee
the defendant’s appearance in court. When a professional Bail
Bond Agency guarantees that appearance, it is called a Surety
Bond and the Bond Agency is fully liable if the defendant
does not appear through an insurance company, called the
Surety. In turn, the Bond Agency charges a Premium for this
service and often requires collateral from a guarantor. The
guarantor generally knows the defendant and is guaranteeing
appearance in court. Ironically, while a defendant who fails
to appear in court is subject to additional charges, he or
she is not normally liable for any bond forfeitures (unless
the guarantor arranges such an agreement with the defendant).
In rare cases and a few jurisdictions, an individual may
obtain release from custody by means of posting a Property
Bond with the court. The court records a lien (or right) on
the property to secure the bail amount. If the defendant
fails to appear, the court may institute foreclosure
proceedings against the property. Often, the equity of the
property must be twice the amount of the bail set.
OR constitutes an administrative pre-trial release.
Usually court administrators or judges interview individuals
in custody and make recommendations to the court regarding
release on OR (i.e. without any financial security to insure
This procedure involves the issuance of a citation by the
arresting officer to the arrestee, informing the arrestee
that he or she must appear at an appointed court date. Cite
Outs usually occur immediately after an individual is
arrested and no financial security is taken.
A judge or magistrate normally sets the Bail amount for a
particular case according to a county Bail Schedule (a.k.a.
Schedule of Bail for All Bailable Offenses) and the particulars
of a case. The Bail Schedule itself is usually set annually by a
majority vote of superior, municipal, and other judges.
In setting or denying bail, the judge or magistrate’s first
concern is the protection of the public, followed by the
seriousness of the offense and previous criminal record. Further,
the Judge must be convinced that no part of the Bail was
In most jurisdictions, a judge, a bail clerk, a court clerk, a
magistrate, or a designated jailer can accept Bail. Note that
this usually does not include the arresting officer.
Bail is normally granted when:
- A person is arrested for a bailable offense, prior to
appearance before the magistrate or other arraignment.
- A person is arrested for a bailable offense, following
formal indictment or charges
- A person convicted of an offense but awaiting sentencing
(when the sentence is likely to be modest)
- A person convicted of an offense but making an
application for probation.
- A person convicted of an offense making an appeal
(usually only after certification that the person is not
a flight risk, faces a modest sentence, is not a threat
to the community, and has a good court appearance
Note also that most jurisdictions will not grant Bail for
capital crimes or violent felonies without the defendant first
attending a hearing for which the prosecuting attorney is granted
time to prepare (often 2 court days).
A defendant charged with a crime punishable by death usually
cannot be granted Bail if the proof of his guilt is evident or
the presumption thereof great.
The Surety (and through them, the Bail Agent) in a Bail Bond
have the right to turn their Principal (the defendant) over to
the Court (via law enforcement) at any time, and to this end may
pursue and seize him wherever they may find him, even
though that be in another state.
- More plainly, the Bail Agent or Surety may cancel the
Bail at any time and turn in the defendant if they deem
necessary (e.g. defendant has left his job, cannot be
located, or is reported to be planning flight).
By common law, the Surety may arrest the defendant who has
failed to appear at any time and in any place. This arrest is
legally considered a continuation of the original custody and has
been likened by the U.S. Supreme Court (Taylor v. Taintor 16
Wall, 366) to the rearrest of an escaped prisoner by the Sheriff.
In the same case, the Court also related that Bail was intended
to transfer custody from the Sheriff to the Surety, not to
discharge the defendant from custody.
- More plainly, the Bail Agent may use forcible entry and
is not required to have a warrant or court order.
The Supreme Court has also ruled that "Bail have no power
to arrest the principal in a foreign country" (Reese v. S. 9
The Surety and its Bail Agent may empower any person of
suitable age to arrest a defendant (usually by providing written
authority on a certified copy of the certificate of deposit).
- In summary, Bail Agents have more powers than States do
in pursuing and arresting principals (defendants). Bail
Agents do not need warrants or extradition proceedings as
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