In the legal system, the term bail refers to a process in which an individual arrested for a crime is required to pay a specified amount of money to be released from police custody. The amount of money required as bail is generally set by a judge, and is a sufficient sum to ensure the accused will return to court as directed, in order to get his money back. While bail is returned to the individual after the criminal court proceedings are complete, failure to appear in court as directed usually results in forfeiture of the money. To explore this concept, consider the following bail definition.

Definition of Bail


  1. Money or property given as a guarantee that an individual will return to court as directed, after being released from jail.


1375-1425        late Middle English bayle

What is Bail

A written or oral promise is not always enough to guarantee a suspect will appear in court on the scheduled date, if he is released from police custody. For this reason, most suspects are required to deposit money with the courts, which will be returned when the legal proceedings are complete. This system is referred to as “bail.” The amount of bail required is determined by the court, depending on the severity of the crime and other factors. While laws governing bail vary by state, the Eighth Amendment to the U.S. Constitution requires that bail not be excessive.

How Does Bail Work

When a suspect is arrested, he is booked or processed into a city or county jail. During booking, an officer takes down personal information about the suspect, records information about the crime, and takes the suspect’s fingerprints. The suspect is searched and placed a holding cell. If the arrest is for a minor offense, he may be released by simply signing a document promising to appear in court. This is referred to as an “own recognizance release.” When the crime is severe, and a written promise is not enough, bail is required.

In such a case, a bail hearing is held, during which the judge decides how much bail must be paid. This decision is based on the severity of the crime, the suspect’s past criminal history, what ties the suspect has to the community, and whether he has the financial resources and ability to flee from the area if released from custody. Bail set for someone with no criminal history, a good job, and family in the area is likely to be set lower than for an individual committing the same crime, who has an extensive criminal history, and no family or stable job.

For example:

Anne Marie is arrested for assault and battery after she gets into a fight at a night club. Anne Marie has no criminal history. She simply drank too much at a friend’s bachelorette party, and got into an altercation with another woman in which they exchanged punches. At the bail hearing, the judge considers that Anne Marie has worked as an accountant at the same local plumbing company for seven years, and that she is married, with two young children. The judge sets her bail amount at $1,000.

Alternatively, the woman with whom Anne Marie fought at the night club, Lisa, has several convictions for such things as petty theft, assault and battery, and drunk in public, in three different states. At the time she was arrested, Lisa had an outstanding warrant for failure to appear at a previously scheduled court hearing on another case. The judge sets Lisa’s bail at $10,000, to ensure she either remains in jail until her hearing, or has sufficient financial incentive to show up.

What is a Bail Bond

In many circumstances, the suspect or his family is financially unable to post the required bail. In this case, a bail bond may be obtained to satisfy the requirement. The bond is a written guarantee that the suspect will appear in court, or that the bail money will be paid to the court if he fails to appear. Basically, the bail bond acts as a surety bond, or insurance, for which the suspect, or someone acting on his behalf, has paid a fee.

A bail bond is purchased through a bail bondsman, who charges a set fee, then issues the surety bond to the court. If the suspect appears at all required court appearances, the bail bond is released, with no further payment being required of the bail bondsman. In any case, the defendant does not receive a refund of his fee to the bail bond agent, as this is the fee for the surety bond.

If, on the other hand, the defendant fails to show up at court, or “skips bail,” the bail bondsman must pay the amount of the bail. If this occurs, the bail bondsman has the authority to track down the defendant, take him into custody, and deliver him to the court. A bail bondsman has no obligation to post bail for any given defendant, and may refuse to do so for any reason. The most common reason for a bail agent to refuse to issue a bond is that the defendant poses a significant flight risk.

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Suspect – A person thought to have committed a crime or offense.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.

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