Types of bail
There are different types of bail that your criminal defense lawyer might seek. Which type of bail might apply in your case will depend on numerous factors, including the locale in which you are arrested and the crime charged.
Under the right circumstances, you could be released:
- “On your own recognizance” (an “OR” bond); or
- On a bond with a face amount but requiring no cash deposit and no collateral except for your own signature. If you fail to appear or otherwise violate your bail conditions, you are liable to the court for the amount of the bond.
Regardless of how you are released, you will face serious consequences if you fail to appear. The court may refuse to re-release you. More significantly, failure to appear is a separate crime with its own penalties, which can include years of imprisonment.
Further, even if a defendant is not prosecuted separately for the failure to appear, the court is sure to add that factor into the sentence for the underlying offense. For example, under the federal sentencing guidelines, failure to appear could merit a twenty-five percent increase in a defendant’s sentence.
In appropriate circumstances, you could be released under a cash bond. With a cash bond, the court requires the deposit of cash as collateral to secure your release.
The court will announce whether the bail is “straight” (requiring deposit of the whole amount) or whether a deposit of some percentage (typically ten percent) will suffice. Even on a ten percent bond, if you fail to appear, you are liable for the full amount of the bond.
If ultimately you are convicted and your sentence includes a fine or restitution, and if the cash posted was your own money rather than a third party’s, the court may order that the cash bond be applied to the fine or restitution.
In some circumstances, you might be released under a surety bond. With a surety bond, the court demands that a third-party sign the bond as surety and perhaps post collateral to secure your release.
The suretor may be a friend or relative, or it may be a bonding company. For more on bail bond agencies, read Bail essentials.
Real property bonds
A common form of collateral is real estate, which might be either your home or the home of a friend or relative.
Real estate is an attractive form of collateral for several reasons:
- It permits you and your family to reserve your cash to pay living expenses and legal costs.
- You (or your suretor) will not lose the interest that could have been earned on cash and you will not expend the interest that would be charged if you use your house to obtain a mortgage or home equity loan to fund the bail.
- Posting a home strengthens your criminal defense attorney’s argument for your release, because if you fail to appear, you will lose your home (or a friend or relative will lose their home). Often, the willingness of friends and family to post property will persuade the court that you do not pose a danger to the community and you are not a flight risk. The friend or relative thereby demonstrates great confidence in your reliability, and your criminal defense attorney can argue that you thus have a strong incentive to appear.
To post property, your attorney must either obtain an appraisal to prove to the court the amount of equity in the property or use the county’s assessed value for real estate tax purposes.
In addition, your attorney may be required to produce certified copies of the deed and any mortgages or liens. Unfortunately, the time needed to obtain certified copies of these documents may delay your release. If the court is willing to accept it, as an alternative, your attorney can present the settlement papers for the purchase of the house and any statement from the lender that shows the amount of principal remaining on the loan to prove how much has been paid on the principal and the equity in the property.
The court may demand that your lawyer file a lien against the property to prevent its sale during the pendency of the case. If this requirement is imposed, your lawyer should try to have you released first, with a promise that a copy of the lien will be filed with the court within the next day or as promptly as possible.
The real property bond may specify that, should you violate the bond’s conditions, the property will be forfeited. If possible, your attorney should try to restrict the forfeiture condition to non-appearance rather than violation of any of the other many conditions often imposed on pre-trial release. If the bond is unclear, your attorney should request that the magistrate state on the record which conditions would warrant forfeiture.