For the average person, being arrested and taken into custody for the first time is a traumatic experience. Typically, the most immediate concern for an arrestee is getting out of jail. Fortunately, in the United States, we have a Constitutional right to bond which allows a defendant to be released from custody while the case is pending. Navigating the criminal justice system for the first time, however, can be stressful and intimidating. So that you feel better informed, a Tennessee criminal lawyer at Bennett, Michael & Hornsby explains the concept of bail and the practical steps typically required to bail someone out of jail.
Your Constitutional Right to Bail
The payment of bail, also referred to as a “bond,” has been used for centuries by the wealthy to ensure a defendant’s appearance at trial. Fortunately, however, in the United States everyone is entitled to bond, not just noblemen and those with connections in high places. Your right to bail can be found in the Eighth Amendment to the United States Constitution which guarantees that “Excessive bail shall not be required.” The nation’s high court has since interpreted that right to mean that in almost all criminal prosecutions – murder being the only exception in state court – a defendant is entitled to a reasonable bond that allows him/her to be released from custody while the criminal prosecution is pending.
How and When Is the Bail Amount Determined?
The bond amount can be determined at different times and by different people depending on several factors. If a defendant is arrested pursuant to an arrest warrant that was issued by a judge, the judge will typically set the bond amount when issuing the warrant. If a defendant is arrested without a warrant (such as for a DUI) the bond amount will be set when the defendant arrives at the jail.
The amount of a defendant’s bond will also be determined by several factors, including:
- Risk to the community if released. The judge will consider the defendant’s criminal history, paying particular attention to whether the defendant has been convicted of any violent crimes.
- Risk of flight. The judge will look at the defendant’s ties to the community, specifically to whether the defendant has family in the community, how long he/she has lived in the area, and how long he/she has been employed at a current job. The judge will also consider any past court cases and whether the defendant showed up as ordered to court or failed to appear.
- Severity of the accusations and/or circumstances of the instant offense. The judge will consider the potential punishment if convicted as well as take into account the wishes of an alleged victim if there is one. This factor can be particularly important if the offense involved is considered a violent crime because there is very likely a victim involved and that victim’s wishes will play a big role in the amount of bond set and any additional conditions of release.
How Do I Pay the Bond/Bail?
The precise procedures you will need to follow may differ slightly by jurisdiction; however, there are four different types of bonds that may be used, including:
- Cash bond – as the name implies, this type of bond requires you to pay the entire amount in cash. For example, if the bond is a $1,000 cash bond you must pay $1,000 in cash. You also always have the right to pay larger bond amounts in cash. When you pay a cash bond, you will get your money back – minus court costs and fees, if you abide by all conditions of release, including appearing for all court dates.
- Surety bond – this is the most common type of bond and involves using a bail bonds agency. Someone must pay 10 percent of the bond amount, which is non-refundable, and agree to be responsible for the remaining 90 percent if the defendant does not show up for court. Note that Tennessee law sets the bail premium at 10 percent and the Department of Insurance is in charge of regulating bail bond companies in the state. It is illegal for any bail bond company to offer a lower premium, although companies can offer payment plans.
- Property bond – this type of bond requires someone to use real property as collateral to secure the defendant’s release. Usually, the property must be worth at least twice the value of the bond.
- Own recognizance – commonly referred to as “OR,” this allows a defendant to be released with just his/her promise to appear.
Contact a Tennessee Criminal Lawyer
If you find yourself under arrest, or you are the loved one of someone who has been arrested, and you have additional questions about bail, it is in your best interest to consult with an experienced Tennessee criminal lawyer at Bennett, Michael & Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your appointment.