When someone is arrested and charged, they have the chance to get out of jail by posting bail or acquiring a bond. The judge determines the amount of bail required based on things such as the severity of the offense the person has been charged with, the possibility of them committing more crimes once released, and the flight risk of the individual all before their trial. Bail can be set for any amount so long as it is not objectively unreasonable. The judge can decide to deny bail entirely, though. While there is nothing specifying that bail has to be allowed and set at all, the Eighth Amendment of the US Constitution does deny “excessive bail” from being placed. So what exactly is the difference between bond vs bail?
What Is Bail?
Bail is an amount of money provided by the defendant to allow them to be released from jail until their trial date. It is set on a formulation of a few factors, such as the nature of the charge, the probability of committing additional crimes, criminal history, the likelihood to appear in court, etc.
When the charges are minor in offense, the bail will correlate and be fairly small – maybe a few hundred dollars. Though, if it is a major offense, the bail posted will reflect a higher amount. A bail hearing will usually post the amount of bail required, if allowed, within 48 hours following the arrest, booking, and filing/processing of all paperwork.
Essentially, bail is a security amount meant to ensure the defendant returns for their court date and throughout the trial. Though not always, the bail is usually returned to the defendant after the duration of the trial. Bail can be paid out of pocket if the defendant has the funds. Or they may get a bond.
What Are Bonds?
A bond is essentially a loan from a bail bond company. This bond, payment amount intended for bail, is traded with an agreement to do something in the contract – such as appearing for their trial/court dates. It allows their release to be justified and reassured until that time. If the defendant fails to do this promised act can mean the deposited money may be forfeited, or the defendant may be required to pay the bond amount back.
A bond is a motivating factor or incentive to fulfill a contract obligated action.
Types Of Bonds
There are 4 main types of bonds available. Though depending on your state, there may be more or less available to you. These bonds all offer advantages and disadvantages. Depending on the type, they may be considered a secured or unsecured bond.
This type of release on your own recognizance is the second (2nd) most likable bond (for the defendant’s release). This bond type does not require any payment upfront to be released. The officer who made the arrest is the one who will determine if this temporary freedom is appropriate and ensure that the defendant appears for their court hearing.
A cash bond bail is the easiest and most obtainable type. It is simply when the set bail amount, which the judge determines, is fulfilled with a cash payment by the defendant or the defendant’s family. This is commonly phrased as just “bail” or “making bail.” This would typically be the next best option. At the end of all your legal proceedings and court appearances, the individual’s bail money paid to be temporarily set free to avoid jail time after arrest will be returned in full. When a defendant pays a cash bail, they also do not lose money in the long term.
When you offer up the title to your own property as collateral for bail set, you are exercising a property bond. Though, it is essential to note that this type of bail and bond is not permitted in all states. Property bonds provide the full rights to any property, not partial. So if you skip out on your trial dates or fail to do as promised in the bail and bond legal document agreement, you waive all rights to that property. It may take quite a bit of time to process, approve, and secure a property bond.
A surety bond is the typical type of bond imagined. This is essentially a promised loan from a bail bond company and costs up to 10% of the amount of posted bail. It is a common choice because when a judge sets bail amounts, they are not usually affordable on the average person’s income budget or savings. This gives the defendant little choice but to agree to a third party bonding company debt and responsibility obligation through a personal surety bond to post bail.
If a defendant is set free without being taken into police custody for a crime, this is at the discretion of the officer to make a judgment and choose to implement it.
Federal Bail Bonds
Instead of going to or through a bail bond company, you could try to secure a federal bail bond for federal offenses. These are difficult and expensive to obtain, though. And, they usually require a professional’s help to secure.
Immigration Bail Bonds
An immigration bail bond is only available to immigrants (people not originating or having citizenship in the US or other relevant countries where the transgression was perpetrated) who commit offenses. They tend to have strict and complicated requirements. It can also make the bail bonds process time for them excessively long. Immigration bonds should attain the assistance of a professional.
Bail Vs. Bond
Though the terms “bail” and “bond” are used interchangeably for avoiding jail after being arrested, they are not the same. As established above, a judge may or may not allow posting bail during a bail hearing to ensure the defendant will appear in court when they must but not have to go to jail. A bond is the bail amount set to permit that freedom – if allowed. People with pending warrants or certain criminal history, though, are not qualified for bail.
Bail is not punishment. It is actually a mercy for release but ensures more security that the person will appear in court than a simple release.
Basically, the difference between bail vs. bond is that bail is an amount of money that would temporarily permit the defendant to be set free, and a bond is if the party agrees and money secures their ability to not go to jail. The bond is collateral that may be kept if the defendant fails to keep their end of the contractual agreement.
Bail Bond Rates
Bail bond rates are usually a set fee of 10% of the bail amount posted. So, for illustration, if bail posted was $10,000, the bail bond rate would be $1,000.
What If A Person Can’t Afford To Pay Bail?
As discussed, bail is not obligated to be permitted, but if it is, defendants have a few options: paying it themselves, taking out a personal bond from a third party, or forgoing bail and waiting for their court date in jail. A private bail bondsman will take a fee out of the total bail amount. This is the nonrefundable bond premium (usually 10-15%). Typically, collateral is collected or secured for the remainder. If the defendant fails to appear in court or to meet their contractual obligations, that collateral will be kept, or the defendant may have to pay off the total amount the third party did not recover.
Why Your Bail May Be Denied
If the judge denies your bail, you must wait in jail until the judge calls on the court date set.
Factors that may lead to denied bail. If:
- You are believed to be a risk: criminal history, lack of respect for authority, public behaviors, flight risk, etc.
- On previous parole or probation, you committed additional offenses, abuse your second chance, and you lose it.
- The offense/crime was severe and posed a danger to the public: murder, terrorism, etc.
- You are an illegal immigrant, you may be forced to go to your home country. If this is the case, you may need deportation defense from our firm.
What Are The Effects Of Waiting In Jail For Trial?
There are many reasons why defendants want to avoid jail. Those retained in jail:
- or pretrial detention are 1-4 times more likely to be sentenced to prison.
- also tend to make rushed judgments for deals or plead guilty, simply to avoid less time in jail.
There is also notable psychological trauma from time in jail; there have been cases where even if the charges are dropped, release from jail can lead someone to commit suicide or other mental health trauma reactions.
Experienced Phoenix Criminal Defense Attorneys
The Ybarra Maldonado Law Group (YMLG) has the skills, experience, and legal knowledge that you need! Contact us today at 602-910-4040. We can help with representation in many practice areas and provide legal counsel over rights, options, and assistance in all aspects of your legal issues and proceedings or preparation in Arizona.