UPDATED: March 12, 2020
It’s all about you. We want to help you make the right legal decisions.
We strive to help you make confident law decisions. Finding trusted and reliable legal advice should be easy. This doesn't influence our content. Our opinions are our own.
- Pretrial release is granted in exchange for a bond with the court in the amount set by the judge — called bail — or without a bond — called released on their own recognizance.
- The amount of bail will depend on the current crime and the background of the defendant.
- Bail can be paid by the defendant or through a bail bond company, who will charge fees and require collateral.
- Failing to appear when on pretrial release can result in additional charges, increased bail, and loss of any amount paid to the court or of collateral provided to a bail bond company.
Understanding Pretrial Release
You might be surprised how much you already know about pretrial release. You've probably seen movies or television shows involving criminal trials. If so, you no doubt remember the moment when the judge decides whether or not to grant bail.
There was probably one side arguing that the accused criminal had "deep ties to the community" or "no criminal record" or something. The other side, of course, argued some variation on the accused "being a flight risk" or that they shouldn't get bail "due to the extreme nature of the crime."
You've seen that play out dozens of times. No doubt you've also seen characters being ordered to surrender their passports or wear an ankle monitor. You might have even seen shows about bail bondsmen going out to find people who don't show up for trial.
Those are all parts of the pretrial release system!
That's a lot you already know about pretrial release, but how much of it is accurate and how much of it is Hollywood? In this article, we'll tell you how pretrial release works, what bail andbonds mean, and what you can expect if you ever have to deal with pretrial release.
What is Pretrial Release
Pretrial release is a pretty straightforward term. In a criminal case, a defendant can be held in jail before trial or they can be released before trial. The latter case is pretrial release.
There are three different types of pretrial release:
- Release with a surety bond
- Release with a cash bond
- Release on your own recognizance
You can read on to find out what each of these terms means.
What's the difference between Bail and Bond?
- Bail is the amount of money that a judge decides the defendant has to put up to secure their pretrial release. This is the first place where things can get confusing because bail is a type of bond. Technically bail is the name for the specific cash bond that criminal courts require.
- A cash bond is an amount of money one party is allowed to hold to ensure the other party performs. This could be a contractor putting up money to guarantee they'll complete a job or a defendant putting up money to guarantee an appearance at trial.
- What's generally referred to as bond in this context is a surety bond. Unlike a cash bond that is just between the defendant — or often the defendant and their family — and the court, a surety bond involves three parties and is actually two connected cash bonds.
- A bail bond company gets a cash bond from the defendant or his family, usually for ten percent of the bail set by the judge. This cash bond guarantees the defendant will appear in court just like a cash bond directly to the court would, but for much less.
- The court gets a cash bond from the bail bond company guaranteeing the defendant will appear.
In either case, once the defendant appears, the court returns the bond. If the bail bond company put up the bond, they keep it and then return most of the defendant's smaller bond. There are fees charged by the bail bond company, but usually, most of the smaller bond paid to them will be returned just as the court will return the full amount of bail to whoever pays it once the obligation to appear in court is fulfilled.
What about when there's no bail?
If no bail is set, that could be good news or bad news.
If the judge denies bail for the defendant for any amount, that's bad news. A judge can do this for many reasons, but the end result is that the defendant will await trial in custody.
The much better news, at least for a defendant, is when the judge doesn't set bail because the defendant will be released on their own recognizance. This means that the defendant will not have to pay anything to be able to avoid awaiting trial in jail.
The judge can set conditions such as requiring the defendant to surrender their passport or to adhere to a curfew, but most defendants would prefer to await trial at home rather than in jail. If the judge finds that there is little chance that the defendant won't appear and that the offense was minor, a defendant will simply have to sign an agreement and go home.
What is the procedure for pretrial release?
In most jurisdictions, the first opportunity to address pretrial release is at the arraignment. Also known as the first appearance in some jurisdictions, this is usually the first time a defendant is told about the charges facing them. This is the scene in the movie when the defendant is asked how they plead.
While it varies from jurisdiction to jurisdiction, the U. S. Constitution requires that defendants be formally charged and have a hearing before a court within a pretty short period. Though Hollywood is known to stretch the truth from time to time, the portrayal of the actual pretrial release hearing is often pretty accurate.
It varies in different jurisdictions, but usually, the prosecution makes a recommendation, the defense may have some argument to counter, and then the judge will make the decision on whether the defendant will be released on their own recognizance, given bail, or remanded without bail.
Judges consider several factors to determine pretrial release.
- The severity and nature of the crime is a factor. A non-violent crime is likely to lead to lower bail or a defendant being released on their own recognizance. A judge might also consider low or no bail for someone who stole $50 but might think someone who stole $50 million is more of a flight risk.
- The background of the defendant is also a factor. If the defendant has a long criminal record or a history of not appearing, high bail or being held in jail is more likely.
- Some jurisdictions have experimented with a formula to decide bail. This formula considers the defendant's criminal history, age, history of appearing in court, and the current charges.
At just about any time after the initial arraignment, the judge can revisit the issue. This means that the judge can decide to revoke a pretrial release, raise bail, or impose extra conditions on a release.
Who gets Pretrial Release
We've already seen that the main considerations in determining whether or not to grant pretrial release are the current crime, the defendant's criminal record, and the defendant's history of failing to appear. Other factors that are often considered are the perceived risk of flight and the defendant's ties to the community.
Usually, a judge will only order a defendant to not get bail if the crime is a very serious one, the defendant has a history of not appearing, or may potentially be a flight risk. Depending on the financial resources of the defendant, though, even a fairly modest bail amount may be no different than ordering the defendant held for trial.
Terms of Pretrial Release
Every state has its own set of rules regarding pretrial release, and these rules can vary between counties and jurisdictions. As we've seen, the judge has a lot of discretion in whether to grant bail and in what terms to impose on any pretrial release.
Most judges and jurisdictional guidelines are intended to address certain objectives in granting any form of pretrial release.
These objectives include:
- protecting the community from crime,
- providing for the safety of the victim, and
- ensuring the appearance of the defendant at later court dates.
In addition, the terms of pretrial release that can be imposed on a defendant are often tailored to the specific offense. For example:
- assault-related offenses often include no contact with the victim,
- trespass or location-specific crimes often include prohibiting travel to certain areas, and
- DWI charges can result in the defendant having to submit to drug tests or install an interlock device.
Some pretrial release programs are even more intensive.
What happens if you don't pay?
If bail is set and you, your family, or a bail bond company do not pay the bond the consequences are straight-forward: you will await trial in jail.
Things get a bit more complicated if you have a bail bond company pay. When bail is set, the company will simply not pay your bond if you can't pay the amount they require, usually ten percent.
If you fail to appear and the company winds up losing the total bond amount, you will be indebted to them just like if you didn't pay your credit card or car loan. They will be able to collect through a collection agency or in civil court.
What happens if you don't show up?
The consequences are somewhat different depending on whether you had bail set or were released on your own recognizance and on whether you paid your bail yourself or used a bail bond company. Some consequences will be the same no matter what the specific circumstances:
- Failure to appear can result in a bench warrant being issued for your arrest
- Failure to appear can result in additional misdemeanor or felony charges
- Failure to appear is a violation of a court order, so it can result in being held in contempt of court.
Other consequences will depend on whether the way you were granted pretrial release in the first place. If you were released on your recognizance, you will likely see bail imposed and may face being held without bail.
If you paid bail yourself, you will forfeit the money you paid and may see the amount of bail increased or be held without bail pending trial.
If your bail was paid by a bail bond company, it will be able to seize the collateral you put up to secure the bond. The company will also be able to pursue recovery in court and send a bounty hunter or similar professional to ensure your appearance.
Advantages and Disadvantages of Pretrial Release
The most obvious advantage of pretrial release is getting to await trial at home rather than in jail. Not only is this more comfortable, but it also makes it easier to meet with defense attorneys and prepare for trial.
That said, some of the conditions imposed on a defendant during pretrial release can be challenging. Having to check in, be electronically monitored, or remain at home under house arrest might be almost as annoying as being in jail, especially for those with limited abilities to meet some of these conditions.
Another potential disadvantage of pretrial release is the risk of a significant amount of money or property being lost if you fail to appear for court.
Finally, if you are likely to be convicted and face jail time, many jurisdictions will let time spent in jail awaiting trial count toward the sentence. Very few, however, will consider the time spent on pretrial release as credit toward a sentence.
Pretrial release is a relatively common practice in the criminal justice system. Though sometimes the terms bail and bond are used interchangeably, both words have very specific meanings. Bail is a term that is unique to criminal trials and represents the amount of money a judge determines must be held as a bond to assure a defendant's appearance.
A bond is a more general term that simply means an amount of money or other collateral that is held to guarantee performance. Bail is a form of bond, which is likely the reason the two terms are used interchangeably in the context of the criminal justice system.
If no bail is set by the judge, that either means that the defendant will be held through the trial — a practice generally reserved for very serious crimes or defendants with a history of not appearing — or the defendant will be released on their own recognizance. That means the defendant won't have to put up a bond to be released before trial.
If bail is set, it will depend on the current crime and the defendant's background. A defendant can pay bail themselves or arrange to have a bail bond company pay. Either way, failing to appear can result in additional charges, losing the bail amount, and the defendant having an arrest warrant issued.
Hopefully, this information has cleared up some of the confusion about pretrial release and clarified some of the differences between what you see in movies and what you could expect in real life.
If you are facing criminal charges, it's a good idea to find a defense attorney to help navigate pretrial release and the trial itself. You can put your zip code in below to see a personalized list of attorneys in your area to help you navigate the ins and outs of criminal defense or any other legal needs.