We hear the terms getting “bailed out of jail” and “posting bail” all the time. But what exactly do they mean? And what’s the difference between bail and a bail bond?

If you’re not sure how to answer these questions, don’t worry. You’re not alone. Many don’t know exactly what bail and bail bonds are or they mix up the terms. So here’s everything you need to know about them to have a clear understanding:

What is bail?

Bail is the price for getting a defendant out of jail before a court hearing. The bail amount is set by a judge—not as a punishment but as a way to secure that the defendant shows up to court. It’s a form of insurance. And posting bail is like leaving collateral with the court. 

If the defendant fails to show up to their hearing or violates the conditions of their jail release, any bail paid to the court is forfeited. 

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What are bail hearings?

A bail hearing is an initial hearing in which a judge decides one of the following: 

  • That the defendant must stay in jail without the possibility of release
  • That the defendant can be released from jail on condition that they sign a release agreement
  • That the defendant can be released from jail if someone posts (aka pays for) their bail

In most cases, the judge will offer bail, but there are many factors that go into this decision and into how much the bail should be, such as:

  • Whether the defendant is a flight risk
  • Their criminal history 
  • Whether they are a risk to the public
  • And their ties to the community 

Whatever the judge decides, defendants should consult an experienced criminal defense lawyer to help them choose the right path forward.

If the defendant is offered bail, they have the option to remain in jail until the charges against them are resolved at trial, pay the bail amount to get out of jail, or arrange for a bail bond.

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What is a bail bond?

A bail bond is a way for the defendant to have their bail posted by someone else on their behalf. Usually, it’s a bail bondsman who offers to pay the bail in exchange for a 10% fee. Although, some states cap bail bond fees at 8%.

Most bails are beyond what the average person can pay. So getting a bail bond is a convenient way to get out of jail if you can’t afford to pay bail yourself.

If the defendant chooses to go this route, they must pay the bail bond fee upfront. Usually, they must also put up some collateral (e.g. their house, car, or other expensive property) for the other 90% of the bail. If the defendant doesn’t have any collateral, the bail bondsman will often try to have the defendant’s family or relatives put up collateral on the defendant’s behalf.

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What happens after the court hearing?

After the court hearing passes, two things can happen:

Either the bail bondsman gets the bail money back. Or if the defendant failed to appear in court, the bail bondsman will try to recoup as much of the lost bail as possible by seizing the defendant’s collateral. 

This is why bail bondsmen charge high interest rates, require collateral, and often even check creditworthiness. By underwriting bail bonds, they risk never getting their investment back.

Wrapping It Up

Now that you know how bail and bail bonds work, you know better what to do if you or someone you care for is ever awaiting trial in jail. Hopefully, this never happens, but it’s better to know the legal process beforehand than to have to catch up while you’re in custody.

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