What is Bail and how is it Set?

If you have been arrested for a crime the judge sets bail. Bail is an amount of money that the court will accept in exchange for letting you out of jail until your case is complete. When bail is not met, the defendant must remain in jail until their court proceeding or trial. Bail is designed to be a way to insure that the defendant will return to court for the completion of the case. If the defendant returns and completes the case, the amount of money paid in bail will be returned. If the defendant fails to appear for his case, the bail money is forfeited and will not be returned. Additionally, the judge will issue a warrant for arrest if the defendant does not show up to the court case. Failing to return to court for your case (also called bail jumping) is a crime itself.

Arraignment or First Hearing

Once arrested, you will be brought before a judge in what is called an arraignment or first hearing. In most cases, the judge will review the charges against you and let you know what they are. Also, the judge will determine and set bail. There is a bail schedule that judges use to set bail based on the crime charged. For example, the bail for burglary is less than bail for murder. Other factors are also used to set bail. Some crimes do not allow for any type of bail and the defendant will remain in jail. Bail is generally less for someone who resides locally than for someone who lives out of the state or out of the country. At the first hearing you or your attorney will be able to provide reasons why the bail should be lower.

Setting Bail

If you are charged with a serious crime it is important to seek legal representation at the time bail is being set (the first hearing). Your attorney will provide reasons why lower bail should be set. Some of the reasons why bail may be lowered include such things as:

  • Defendant does not pose a threat or danger to others
  • Defendant does not have any previous criminal record
  • Defendant is employed
  • Defendant is an upstanding citizen


When this is the first offense or when the crime is not severe, the judge may reduce bail or may release you on your own recognizance (O.R.). Your lawyer will discuss the case with the prosecutor before going before the judge and often come to agreement on what bail the prosecutor will seek. The judge often (but not always) takes the recommendation of the prosecutor when setting bail. It’s almost always better to have an attorney argue for lower bail than to try to do it yourself. Keep in mind that your lawyer can ask the judge to reconsider bail even after it has been set.

Making Bail

There are two main ways to make bail and get out of jail – by paying the bail in the full amount using cash or check, or by purchasing a bail bond. A bail bondsman is someone who lends money to you for bail. The bail bondsman charges a percentage of the bond as his fee. When using a bail bondsman you may need to come up with a certain amount of money based on the bail set. For example, if bail was set at $1,000, the defendant will usually need to come up with 10% (in this example $100) to buy a bond. You will need to repay the bond at a specified time or payment plan. If you fail to appear for the case you will be responsible for repayment of the full amount of the bond. You may need to provide the bail bondsman with collateral to cover the bond. This may include personal property such as a car or home. In the event that you fail to appear, the bondsman will be able to take ownership of the collateral. If you have been arrested it is helpful to speak to an attorney as soon as possible to get the best possible result.