top of page

Contact Our Firm

Bail vs. Detention . . . How Do I Obtain Bail After Being Arrested?

Writer's picture: Roland SwansonRoland Swanson

When a person is arrested, one of the first thoughts likely to cross their mind is, “how do I get out of jail?” This is a natural concern and question to have considering no one likes sitting in jail. Whether charged with a federal or state offense, an accused individual may be able to obtain their temporary release from pre-trial detention/custody by posting bail.

 

Bail can be described as the process of obtaining the release of oneself or another by providing security for future court appearances. Essentially, bail exists in an attempt to ensure an accused individual continues to appear for all future court appearances. Bail is not allowed to be set in any manner that punishes an accused individual nor can any bond be set that is excessive in nature.


Before delving deeper into the topic, there are a few key terms contained below to help understand the bail process in general.

 

Understanding Bail Terminology

 

Cash bond – A cash bond is essentially synonymous with the term “cash bail.” A cash bond requires the accused individual to pay a pre-determined monetary amount in order to be released from pre-trial detention/custody.

 

Collateral – Property that is pledged or otherwise offered as security against a debt. This property can include a variety of different items such as: stocks; bonds; vehicles; homes; etc. When collateral is offered, the offering party agrees to a lien being placed against the property.

 

Personal recognizance – Often referred to as a “PR bond,” a personal recognizance bond allows an accused individual to be released from pre-trial detention/custody without paying a monetary amount or having to use some form of property as collateral. When a PR bond is granted, the accused is required to promise or otherwise agree to appear at all future court proceedings.

 

Property bond – A bond wherein the court accepts property as collateral to secure or otherwise ensure the accused individual’s appearance at future court proceedings.

 

Surety bond – Surety bonds in criminal cases involve three parties: (1) the surety; (2) the obligee; and (3) the principal. When a surety bond is granted, the surety (who is usually a bail bondsmen) guarantees the performance of certain obligations by the accused individual (referred to as “the principal”) to the court (who is the “obligee”).

 

Unsecured bond – An unsecured bond is executed when an accused individual is released from custody without having to post a cash bond or collateral. When an unsecured bond is granted, the accused and any co-signer on their behalf agree to have a lien placed against them in the amount of the bond. Payment will only be required if the accused fails to appear for any future court proceeding.

 

Bail on the State Level

 

In the State of Missouri, bail determinations largely resemble the determinations made on the federal level. More specifically, Missouri Supreme Court Rule 33.01 holds that an accused individual is entitled to be released from custody on their own recognizance subject to the conditions that:

 

1.     the accused individual will appear in the court in which their case is pending for scheduled court appearances;

 

2.     the accused individual agrees to submit to orders of the court;

 

3.  the accused individual does not commit any new offense or tamper with victims or witnesses in the pending criminal matter; and

 

4.   the accused individual agrees to comply fully with any and all conditions imposed by the court in granting their release.

 

The only time a court is allowed to refuse to release an accused individual on their own recognizance, subject to the above-listed conditions, is when there is a determination that such conditions will not secure the accused individual’s appearance at trial/other court proceedings or if the accused individual poses a threat to the safety of the community or any other person. If the court makes such a determination, the court must then consider whether imposing additional conditions of release will satisfy their concern of the individual failing to re-appear or posing a threat to the safety of the community or any other person. Those additional conditions can include, but are not limited to:

 

  • restricting the accused individual’s travel, association, or place of abode during the period of release, including requiring the accused to surrender their passport;


  • requiring the accused to regularly report to an officer of the court, such as a pre-trial officer;


  • GPS electronic monitoring;


  • imposing a specified curfew upon the accused individual;


  • requiring the accused to abstain from the possession or use of alcohol or any controlled substance;


  • requiring a monetary bond amount be paid; or


  • other conditions necessary to secure the accused individual’s appearance and ensure the safety of the community or other persons.

 

Whatever additional conditions imposed by the court must be a condition or combination of conditions that is the least restrictive. This means the court cannot impose a condition or combination of conditions that is greater than necessary to secure the accused individual’s presence at future court proceedings and also protect the safety of the community and other persons. Doing such is a violation of the accused individual’s Eighth Amendment protection from the setting of  excessive bail.

 

Bail on the Federal Level

 

Bail determinations made in federal cases must follow the requirements set forth in Chapter 18 of the United States Code, Section 3142. Pursuant to this particular statute, when an individual is charged with committing a federal criminal offense, the individual must be released on their personal recognizance or upon the execution of an unsecured appearance bond. The only time a judge is allowed to deviate from releasing the accused individual on a personal recognizance bond or an unsecured appearance bond is if the judge determines that such release will not reasonably assure the accused individual’s appearance at future proceedings or if such release will present a danger to the safety of another person or the community.

 

In making their bail determination, federal court judges are required to consider various factors including:

 

  1. the nature and circumstances of the offense;


  2. the weight of evidence against the person;


  3. the history and characteristics of the accused individual (i.e., family and community ties, employment, financial resources, drug or alcohol use, criminal history and record of appearances, etc.); and 


  4. the nature and seriousness of the danger to any person or to the community that would be posed by the accused individual’s release from pre-trial detention/custody.

 

Generally, federal courts will require a pre-trial officer prepare a report containing the above-mentioned information as it relates to the accused, in preparation for a detention hearing where bail will be considered. This hearing is required to occur upon the accused individual’s first appearance before the court unless a continuance is requested. If a continuance is granted, the continuance is not allowed to exceed five days (if requested by the accused individual) or three days (if requested by the Government).

 

If, after considering the requisite factors during a detention hearing, the court determines a personal recognizance or unsecured bond cannot be granted for the accused, the court must then consider available alternatives. This means the court is not allowed to jump straight to ordering the continued detention of the accused individual.

 

The alternatives courts are required to consider often involve the imposition of certain additional conditions of release, including requiring the accused to: maintain or seek employment; report on a regular basis to designated agency; submit to GPS monitoring; comply with a specified curfew; refrain from possessing a firearm; etc.

 

No matter the condition or combination of conditions imposed, the condition(s) must be the least restrictive measure to reasonably ensure the future appearance of the accused and the safety of any other person and the community.

 

CALL THE SWANSON LAW FIRM TODAY!

 

If you or a loved one have been accused of a criminal offense, whether on the state or federal level, it is important to seek the advice and guidance of an experienced and knowledgeable attorney as soon as possible. Bail determinations can oftentimes require skillful arguments be crafted and presented to the court in order to secure the release of an accused individual from pre-trial detention/custody. The Swanson Law Firm has the requisite knowledge, experience, and zeal to provide exceptional service and representation in any pending criminal matter. Call us today to schedule your free consultation.

13 views0 comments

Comments


bottom of page