Getting out of jail is not free

A person arrested for an alleged crime may wait months before the matter is settled at trial. The first time the defendant goes in front of a judge is at an arraignment. Rather than keep a person—one not yet convicted of any crime—in jail, the judge may set bail and release the defendant until trial. Release will often require bail, money someone (the defendant, a friend or family member, bail bondsman, or other person) gives to the court to ensure the defendant will show up for trial if released in the meantime.

Pennsylvania law states bail cannot be used simply to keep a defendant in jail until trial. Factors the judge may consider when setting bail include the defendant’s habits, mental state, employment, ties to family and community, criminal record, any previous record of jumping bail, and chances of being convicted at trial. The judge will also consider the serious nature of the crime. Bail may range from as little as $1 to millions of dollars.

There are three types of bail in Pennsylvania:

• Release on unsecured bail bond (the defendant will be liable for a sum if he or she fails to appear)
• Release on nominal bail (as little as $1) and a third party surety, such as a bail bondsman. The surety then has the right to arrest the defendant (including across state lines) if necessary
• Release on another monetary condition

What if a defendant can’t raise bail? One solution is to get a bail bond, a guarantee by a bail bond company to pay the bail if the defendant does not show up for a court appearance. The defendant (or family or friend) pays the bail bondsman 10% of the total bail amount. The defendant does not get that money back.

When a defendant released on bail does not show up for a court hearing, the judge will issue a bench warrant for the fugitive’s arrest. When the defendant is returned to court, the court may then keep the bail money and/or keep the defendant in jail until the case is over.

Most defendants are in court for the first time. They may not understand the options available to the judge, or how to present their positions effectively. Although it is not necessary for the accused to have a defense attorney at an arraignment, a criminal lawyer has experience in court and may be able to negotiate better terms than the defendant. A defendant with no funds can request a public defender. Others are entitled to access to phones and resources to contact private counsel. A defense attorney will work to convince the court to agree to favorable terms, including minimal bail, bail despite the prosecutor’s recommendation against release, or an alternative form of release. If the judge is convinced the defendant poses no threat or flight risk, he or she may be released on recognizance (ROR)—that is simply the defendant’s promise to show up for all court appearances. A judge can also set non-monetary conditions, such as abstaining from drug or alcohol use, on the defendant’s release. Many criminal lawyers work closely with bail bond companies, and can refer clients to those agencies to fund their release.

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