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Bail Issues: Can You Bail Me Out of Jail?

By Colin McKibbin, Attorney at Law and Helen O. Kim

Timeline of an Arrest

• An individual is arrested and charged with an offense.
• The defendant makes an initial appearance where either the defendant is released on her own recognizance or bail is set.
• Defendant either pays bail with a bond and is released pending trial or remains detained until trial.
• If the Defendant appears for trial. Then the bond money is returned to the defendant or his surety.
• If the Defendant fails to appear for trial. Then court keeps the bond money.

The Initial Appearance in Front of a Judicial Officer

After an individual is arrested and charged with a criminal offense, the defendant must make an initial appearance in front of a judicial officer. At this time, the judicial officer informs the defendant of the charges against her and of her rights, and either releases her on her own recognizance, sets bail, or other conditions of release pending trial. Bail, also known as pretrial release, prevents imprisonment of a defendant pending trial. A judicial officers decision to release the defendant before trial is based on the risk of the defendants nonappearance and the likelihood that the defendant will flee once she is released.

A defendant may be released on personal recognizance (the defendants pledge or promise to appear at all future court dates) or upon execution of a bond. 18 U.S.C.S. 3142(b). A bond is a written and sealed obligation of payment by the defendant or his surety to insure the defendants appearance in court. A bail bond is the most common form of pretrial release where the defendant avoids imprisonment by promising to pay a prescribed amount if he or she fails to appear in court.

The Bail Reform Act provides that a person may be released pending trial upon execution of a bail bond in an amount deemed reasonably necessary to assure the individuals appearance. In most cases, the bond amount depends on the nature of the defendants charge. The rationale for this practice is that the more serious the charge, the more reluctant the defendant will be to appear in court since the consequences are greater. In very serious crimes or cases where the defendant cannot be trusted to appear in court, the judicial officer intentionally sets the bond amount high so that the defendant will not be able to meet it and the defendant will be detained in jail until her trial date.

Reduction of Bail

In United States v. Lemos, 876 F. Supp. 58 (D.N.J. 1995), the defendant was charged with conspiracy to distribute cocaine. The magistrate set the defendants bail at $25,000 and the defendant moved for a reduction of the bail to $2,500 because he was not able to raise $25,000. The defendant stated that the Bail Reform Act of 1984 entitled him to bail at an amount he could afford. He argued that pursuant to 18 U.S.C.S. 3142(c)(2), [t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person. However, the court stated that under Section 3142(c) a judge may set the bail high if the judge believes that a high bail is the only means of assuring the defendants appearance. If the defendant is unable to post bail to insure his appearance, then the only assurance for the defendants appearance is detainment.

On the other hand, in United States v. Leisure, 710 F.2d 422 (8th Cir. 1983), the court granted the defendants motion for reduction of bail because a high bail was not the only means of assuring the defendants appearance in court. The defendants were charged with participating in racketeering activities that carried a maximum penalty of twenty years of imprisonment and a $25,000 fine. Their bail was set at $1 million and $2 million. The court reduced the defendants bail after considering the nature and extent of the circumstance. The court determined that the defendants would appear for trial after their release because they had resided in the city for a long time, their immediate families also resided in the city, they owned real property in the city, they were employed in the city, and they had a good track record of appearing in court for other criminal proceedings. Id.

Surety: Defendant’s Appearance in Court

In many instances, a defendant is released pending trial on a bond secured by property belonging to the defendants family members. The family member(s) act as a surety and are responsible for the defendants appearance in court. Pursuant to Federal Rules of Criminal Procedure 46(e)(1), once a defendant appears for trial, [t]he court must exonerate the surety and release any bail. The court must exonerate a surety who deposits cash in the amount of the bond or timely surrenders the defendant into custody. However, if the defendant flees upon release, the surety assumes the bond amount. In United States v. Nguyen, 279 F.3d 1112 (9th Cir. 2002), the defendant was convicted of loan fraud and sentenced to a thirty-month prison term. The district court increased his bond from $50,000 to $100,000 and released him pending appeal. The defendants sister and brother-in-law acted as the defendants sureties and secured the bail bond with their equity in residential properties. The defendant failed to appear in court due to various medical problems but the court stated that the defendants medical problems were not exigent circumstances and did not prevent him from appearing in court. The defendant was arrested and the district court entered judgment against the sureties for the entire bond amount of $100,000. The Court of Appeals affirmed the district courts decision and stated that as sureties, the defendants relatives had an obligation to assure the defendants appearance and to learn whether he was in violation of the bond requirement. The sureties were aware of the consequences when they entered the bond agreement and they needed to accept the cost. Id., at 1118.

In Bridges v. United States, 588 F.2d 911 (4th Cir. 1978), defendants were charged and convicted of violating narcotics law. Many of the defendants had secured money for the cash bond from their relatives and friends. The defendants satisfied the terms of the bond by appearing at trial and the defendants sureties sought a return of the bond money. Id., at 912. The controversy arose when the government moved to secure the bond money in a trust and use it to pay the defendants fines associated with their crime instead of returning it to the defendants relatives and friends. The court stated that such practice was allowed if the bond money belonged to the actual defendants and not their sureties. The court stated that there is a presumption that the money deposited by each defendant [as bail] was his own where the names of third party claimants to the money did not appear of record. Id. Thus the sureties needed to prove that they were entitled to a refund of the bond money because it belonged to them and not the defendants although their names were not on record.

Conclusion: Complications in Bail Setting

As the above cases indicate, bail setting may create complications to an already distraught defendant who is charged with an offense. A defendant should contact a defense attorney to represent the defendant in the initial appearance proceeding and bail setting hearing to avoid imprisonment before trial. Individuals who act as sureties to a defendant should also contact an attorney to discuss their responsibilities and possible consequences that may arise from their agreement.