What is Bail and How Do I Pay It?

“Bail” is a cash payment that is deposited (“posted”) to the Court and is held there until your case is concluded.  The money is deposited in return for you release from custody, either by the police or the jail.  At the end of the case, whoever posted the bail money gets it back.  If bail is ordered in your case, you will not be released from custody until it is posted.  You will be held at the county jail until the end of your case, or until the bail is posted.

Your release on bail is conditioned on several promises.  You promise that you will return to court for each and every court date, and you promise that you will not commit any new offenses while you are out on bail.  A judge may impose other conditions upon your release on bail, as well, including:

  • House arrest at home with a GPS monitor on your ankle, and perhaps a breathalyzer installing in your home to prevent you from drinking alcohol;
  • Curfew;
  • A promise to stay away from, and have no contact with, the alleged victim(s) in your case;
  • Enter and complete  substance abuse treatment;
  • Remain free from drugs and alcohol, with random drug testing;
  • Stay away from certain places;
  • Refrain from using a computer;
  • Any other condition that the judge feels is appropriate in your case.

If you violate any of these promises, or conditions, the judge can revoke your bail, meaning that you will be taken into custody and held in jail until your case is resolved.

The judge can also order the forfeiture of the bail if you fail to show up for court, meaning that the person who posted the bail will not get the money back.

How do I pay, or “post”, bail?

Bail is usually posted in one of two ways.  When someone is arrested, the police will call a “bail clerk” who is a court official who can set bail amounts when the court is not in session.  These clerks will come to the police station, look at the police report and the charges against you, and will set a bail amount.  You, or someone on your behalf, can give them the cash right there and then, and you will be released until court the next day.

The bail clerks are also entitled to a $40.00 fee for coming and setting bail. This fee is in addition to whatever bail amount is set, and is not returned at the end of the case.  So, whatever amount is set by a bail clerk, add $40.00 to the total.  If you have the bail amount but not the $40.00 fee, you won’t get released.

Often when bail has been set and posted by a bail clerk, the judge will adopt that amount as the permanent bail when you appear in court the next day. However, he doesn’t have to adopt that amount.  He may order a higher bail if he feels that what was posted the night before was not enough.  Or, he may set a lower amount.  If he sets a higher amount, you will go back into custody and be held at the jail until the new amount has been posted.

When bail is set in court, it can be paid at the court clerk’s office.  It needs to be paid in cash.  The person posting the bail has to show a picture ID, and they will receive a receipt.  Only the person who posted the bail can receive it back at the end of the case.

Bail can also be posted at the jail, if someone is held on bail and it cannot be paid before the person is taken to the jail after his first court appearance and when the courthouse is not open.

Appealing a bail determination.

If a bail amount is set in the District Court, that determination can be appealed in the Superior Court.  Your lawyer can file a Bail Review Petition and a Superior Court judge will hold a new bail hearing, usually within a couple of days. These hearings are now usually done by video, so you will be in a room at the jail, and the judge, your lawyer, and the prosecutor will be in a courtroom.  You will each have a large video screen so you can see and hear the other party.

It is not unusual for the Superior Court judge to lower the bail set in District Court, if you have a good argument for why he should.  Superior Court judges hear much more serious cases than District Court judges, so circumstances that sound severe to a District Court judge might sound routine, or almost mild, to a Superior Court judge.

Factors judges consider when setting a bail amount.

What do judges and bail clerks consider when determining how much bail to order?  The questions in a bail determination are:

  • How much bail will ensure that the defendant returns to court; and
  • Does the defendant pose a danger to the public.

Therefore, if it is your first offense and the facts of your case do not involve injury to another or a danger to the public, you will likely be released on no bail at all.

If you have a long criminal record, and you have lots of defaults (missed court dates) on it, your bail will be higher to insure you appear for court.

Factors judges look at include:

  • The number of prior offense on your record;
  • The types of offenses on your record (are they crimes of violence?);
  • How long ago those offenses took place;
  • The facts the police and prosecutors are alleging in this case;
    • violence?
    • a particularly vulnerable victim?
  • How severe the potential penalty is for the new offense;
    • mandatory minimum?
  • Your financial circumstances;
  • Your family circumstances;
  • Are you a drug or alcohol abuser:
  • Do you pose a threat to anyone?
IMPORTANT:  Bail has to be posted in cash, no matter the amount.  Checks, credit cards, etc., will not be accepted.