Bail and Pretrial Release

The decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.

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What it means

Bail is the set of conditions on which a person charged with an offense is released while the case proceeds. The decision is made early, often within a day or so of arrest, and it is not a judgment about whether the person committed the offense. The questions a court is answering are narrower: will this person come back to court, and is there a risk to anyone if they are released.

Release can take several forms. Release on recognizance is a promise to appear with no money involved. An unsecured bond makes money owing only if the person fails to appear. A cash or secured bond requires money or property to be posted, which is returned at the end of the case if the conditions were kept. A surety bond is where a commercial bail bond company posts the amount for a non-refundable fee, typically a percentage of the bond - that fee is the company's and is not returned whatever the outcome, which is the point most often misunderstood. Non-financial conditions are common alongside any of these: supervision, electronic monitoring, curfews, surrender of a passport, and no-contact orders.

Bail conditions are not fixed for the life of a case. A defendant can normally apply to have them reviewed and reduced as circumstances change, and the prosecution can apply to have them tightened or revoked - most commonly after an alleged breach or a new arrest. Breaching a condition can result in return to custody, forfeiture of the money posted, and in some jurisdictions a separate charge for failing to appear.

This is one of the areas of American criminal procedure changing most quickly and most unevenly. A number of states have substantially restricted or eliminated money bail for many offenses in favor of assessment-based release, others have not, and the rules can differ between counties within a single state. What applies is local, and a description of practice in one state is a poor guide to another.

Where this comes from

When people hire a lawyer for this

The first hearing is usually the one that decides whether someone is in custody for the following months, and it happens quickly - which is why representation at that hearing matters more than its length suggests. What helps is concrete and gatherable in advance by family: proof of address, employment, caregiving responsibilities, community ties, and anyone willing to act as a surety. If a commercial bond is being considered, the fee is not refundable and the contract binds whoever signs it, so it is worth understanding before signing rather than after. Conditions that have become impossible to keep - a curfew that conflicts with a new shift, for instance - are a reason to apply for a variation, not a reason to breach.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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