Bail is money, or property, that is deposited or pledged to a court, in order to secure the release from custody of a defendant who has been arrested, with the understanding that the defendant will return for their trial and all required court appearances. If the defendant returns to make all their required appearances, bail is returned after the trial is concluded. If the defendant misses a court appearance, the bail is forfeited.
Bail practices vary by state and county, and bail amounts may vary depending on the severity of the crime for which the defendant is being detained.
In California, there are three ways to post bail: cash; a property bond; or bail bond.
To be able to post cash bail, one must pay the full amount in cash, or post a cashier’s check at the jail. Depending on the county, you may be allowed to use a credit card to post bail. If the defendant attends all required court appearances, the cash bail amount will be refunded. If the defendant fails to appear at any required court date, the bail may be forfeited (PC 1305).
The least commonly used form of bail is a property bond. Equity interest in real property is used to ensure an appearance in court. However, the value of the equity must be at least twice the bail amount. To obtain a property bond, the property must have been recently appraised, any liens disclosed and the property equity professionally estimated. If the defendant fails to appear in court when ordered, the county will place a lien on the property and can then foreclose on the property to recover the amount of bail.
The vast majority of people post bail using a bail bond because bail is often set too high for a cash payment. A bail bond is a contract between the defendant and a bail bond agent. Under this contract, the agent receives a nonrefundable premium, which is typically 10 percent of the total amount posted. In San Diego County, if an individual is charged with felony burglary, bail may be set at $50,000 (PC460a). In this example, the nonrefundable premium of $5,000 must be paid to the bond agent up front in order for the defendant to be released prior to their trial date.
If the defendant fails to appear in court, the bail bond agent retains the bail money. However, an agent will typically require some sort of collateral to be posted. This can be a house, vehicle or anything of value owned by the defendant. This collateral is used to cover a forfeiture of the bail amount to the court.
There are currently 500,000 people awaiting trial in U.S. jails because they are unable to post their set bail, which often results in far-reaching consequences such as loss of employment, dismissal from school or inability to provide for dependents.