The Right to Bail

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Woman judge speaking to defendantYou won’t see the right to bail explicitly mentioned in the Constitution. However, the 14th Amendment note that no individual may have his or her life or liberty deprived without first undergoing due process of law.

Put more simply, someone who has been arrested may not be confined for a long time without being charged and subsequently convicted of a given crime.

Because of this, the accused during a criminal prosecution is typically entitled to bail. If such an application is made, then a bail hearing must occur to determine whether or not the judge will permit it. If so, and if the accused provides bail money, then he or she will be released until the next court date.

Does Every Person Have the Right to Bail?

Because the Constitution doesn’t exactly guarantee any kind of right to bail, it ultimately comes down to the state level. For instance, there are some states that have their own laws that require bail to be granted under certain circumstances. In other states, however, the court can consider setting a bond without the accused having to file any motion. If the court doesn’t do so, then the accused can make a request.

Getting a bail hearing doesn’t automatically mean the accused can be released. Instead, the hearing helps determine whether or not any bail can be set. In most cases, the accused should have access to bail as long as he or she doesn’t present a flight risk or a threat to society and has not been charged with a capital offense.

After Getting Arrested

Once someone has been arrested for a crime, they’ll either need to remain in custody until the trial begins or until they’ve posted bail. Note that this is not the same thing as a first appearance; the trials can be set months following the date of the arrest.

First Appearance

The accused’s first appearance is just that: his or her first appearance in front of a judge. In some states, this should occur within 24 hours of the arrest. During this time, the judge takes the time to understand the case and potentially issue bail. In fact, any of the following events can occur:
– The judge may set a monetary bond value for someone arrested as “no bond.”
– The judge can revoke previously granted bonds, reducing the accused to “no bond” status.
– The judge can raise or lower the amount of bond.
– The accused may be released but only under supervision. This means he or she will need to report to designated staff on a regular basis until the case has concluded. This may also include additional conditions such as AA/NA meetings, curfews, random urinalysis and more.
– The accused may be released based on recognition if they’re well known within the community and pose no risk or threat. In this case, he or she may be trusted to return to the trial without additional responsibility or supervision.

The first appearance is not the same as the arraignment, which is when the accused typically pleads guilty or not guilty.

How Does Bail Work?

When bail is set, this means a certain amount of money must be provided as a means of insurance between the accused and the court. It can work in one of two ways:
– The defendant or a representative on his or her behalf can post a cash bond, in which the entire bond amount is provided. If the accused arrives to every court date, then the person who put up the bond will get the money back, minus any court fees, fines, court costs and other penalties.
– Surety bail bonds are purchased via bail bondsmen. In this circumstance, someone pays the bondsman a set amount, such as 10 percent of the bail, and the bondsman provides the bond to the court. As long as the accused attends all scheduled court dates, no additional payments need to be made.

In both cases, if the accused doesn’t appear and skips on his bail, his or her bail is surrendered, and no money is returned. If the accused skips on a bail bondsman’s insurance, then the agent can legally locate and surrender the defendant back to court.