A person who is arrested generally has a right to be released from jail before trial. This, of course, is because the law presumes a defendant innocent until he or she pleads or is found guilty. In order to make sure the accused person appears in court, the Eighth Amendment to the U.S. Constitution, Article I, Section 9 of the Ohio Constitution, and Rule 46 of the Ohio Rules of Criminal Procedure provide for reasonable bail.

Q.:  What is bail?
A.:  Bail is the release of an accused person before trial by the court on the promise that the person will appear in court on all scheduled dates. To secure the person’s promise to appear, the court may ask for a deposit of money or property and, in some cases, may impose certain restrictions on the accused person.

Bail is often thought of as money paid to the court for a pretrial release, but, in cases where there is no good reason to think the accused person is likely to miss a scheduled court date, there may be no money involved. In such a case, bail is “personal,” and the person is released “on his/her own recognizance” after signing a promise to appear in court.

When the court does order money or property to be paid for bail, there are several ways this may be handled. The accused person may provide a “cash bond,” a sum of money usually deposited with the clerk of court that is returned in full when the case is concluded.

However, the full amount of bail is often too much for an accused person to pay, especially on short notice. If the judge or magistrate finds it appropriate, the accused person may be allowed to post a “10 percent bond” with the clerk of court. The cost of the bond is 10 percent of the total bail amount ordered by the court. Assuming the accused person appears in court, most of the cost of the bond (usually 90 percent) is returned when the case is over.

Bail also may be secured with a property bond, where deeds to real estate are transferred to the court to hold while the case is going on.

In many cases, the accused person uses a “surety bond,” a type of insurance policy, to pay the bail amount. The surety bond fee is paid to a bail bondsman, who promises to cover the bail amount upon an accused person’s failure to appear.

Q.:  How does a surety bond work?
A.:  Bondsmen issue surety bonds. For a fee, a bondsman will write a bond for an individual to guarantee his or her appearance in court. A surety bond is a promise to pay if an accused person does not appear. Oftentimes bondsmen will ask for a lien to be placed on real estate (such as a home) to further protect the bond. Assuming the defendant appears in court at all scheduled times until the case is over, any property liens are removed. However, the fee is not returned.

Q.:  What happens when a person on bail fails to appear in court?
A.:  First, the court issues a warrant for the person’s arrest, and usually orders the bond forfeited at that time. If the bond is cash or property, the court keeps the cash or property. If the bond is a surety bond, the bondsman must pay the bond to the court. If a bondsman or bounty hunter is able to locate the defendant and bring him or her to court within a reasonable period of time, the court may return some of the money to the bondsman.

Q.:  How is the bail bond amount determined?
A.:  In felony cases (more serious cases) the amount of the bail bond is determined by a judge or magistrate. He or she will consider the seriousness of the offense, the strength of the evidence, the defendant’s ties to the community, prior criminal history, and history of appearance at court proceedings. The court also may consider factors such as the defendant’s medical or psychological condition.

In addition to setting a monetary bond, the court may issue reasonable conditions to ensure the accused person’s appearance in court, or to protect public safety. For instance, the court may order travel restrictions, or may require the accused person to reside at a certain address, or prohibit the accused person from contacting the victim. The court may, as a condition of bond, order an accused person to be treated for drug and/or alcohol addiction. Some courts have pre-trial supervised release programs where a defendant may be required to appear regularly to a probation officer or a supervisor while his or her case is pending. 

In more minor matters, such as misdemeanors and traffic violations, the law provides a bond schedule where specific bonds are pre-set and can be posted by an accused person as soon as he or she is formally charged.

12/8/2005

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Judge Christine Talley McMonagle of the Eighth District Court of Appeals.