What is bail?
We’re lucky to be living in a time and place where you typically do not have to await court in jail after being criminally charged. With roots stretching back to the Habeas Corpus Act, passed by the British Parliament in 1679, the American bail system has been in the making since before the United States of America was even born! America’s bail system develops a historical trend towards preventing arbitrary imprisonment. Given our country’s value of the right to be considered innocent until proven guilty, it is important that defendants in criminal cases retain their freedom until and unless they are convicted.
The government has to balance this fundamental right to liberty with the needs to ensure a defendant will appear at trial and to protect the community from harm (see, the Bail Reform Act of 1984). Bail is an attempt to provide for the interests of the state, community, and individual at the same time. To promote government interests, the amount of bail a defendant is required to pay to get out of jail is set by a magistrate based on the defendant’s risk of flight and causing harm. The idea is that if a defendant has invested a certain amount of money into getting out of jail, they’ll appear in court. Then, after the case has closed and all court appearances have been made, the court will refund the bail (minus administrative fees). The Eighth Amendment to the Constitution, ratified in 1791, protects the interests of the individual by providing that “Excessive bail shall not be required, nor excessive fines imposed[.]” Meaning, magistrates cannot set bail any higher than is required to promote the aforementioned government interests.
However, this doesn’t mean that bail is guaranteed for every person who is taken into the state’s custody. The government reserves the ability to deny bail to offenders who are likely to flee or cause harm, but the denial of bail is an extreme circumstance. A defendant charged with a DUI should expect to bail out of jail pretty quickly. In contrast, someone charged with first degree murder may be denied bail. If a defendant is denied bail, or if the bail set by the magistrate is too high to pay, the defendant’s attorney can request a bond hearing to convince a judge that releasing the defendant on bail will not pose a significant risk to the state and the community. On the flip side, the prosecution also has the opportunity to argue for raising the defendant’s bail or revoking bail entirely at a bond hearing.
The magistrate set my bail. How do I pay for it?
Once the magistrate sets your bail, you are responsible for paying the bail to the government before you can be released from jail. The most straightforward way to do this, of course, is to pay the full amount with cash or check. Alternatively, some defendants may be able to offer property of value equivalent to their bail as assurance of their appearance in court. Your friends and family may also post bail for you. If someone else is going to pay your bail for you, they can typically come in person to the jail you’re being detained at and bail you out once the booking process is completed. It’s usually a good idea to call the jail in advance to get an estimate on how long the booking process will take, since many jails get backed up and take hours to process new intakes. Local court websites sometimes post resources explaining the booking and bail process, so a Google search can also be of great help.
In these economic times, though, most people don’t have hundreds or thousands of dollars laying around to pay their bail up front. For this reason, the practice of buying a bond has become commonplace for defendants in criminal cases. Defendants can hire a bondsman, who they pay 10% of the bail up front. The bondsman will cover the remainder so that the defendant can get out of jail. Many jails keep a list of local bondsmen on hand so that defendants can use the jail’s phones to contact bail bonding companies.
This is an attractive option for most people, especially those who simply don’t have enough money to post the full bail amount. Be aware, however, that there are drawbacks to hiring a bondsman. Bail bond companies are for-profit businesses that make their money through the 10% defendants pay them to get out of jail. Unlike defendants who pay their own bail, defendants who bond out through a bondsman will not be refunded the full amount they paid to their bondsman once their case closes. In addition, bail bond companies agree to pay the court the full bail amount if the defendant fails to appear in court. Due to bail bond companies being liable for large sums of money, they may monitor their clients throughout the resolution of their case to ensure they don’t fail to appear in court. If defendants do try to flee, a bondsman may then hire a bail recovery agent to find them and take them into custody. Therefore, by bonding out of jail, defendants relinquish some money and privacy to their bondsman.
In some cases, when a defendant has a clean criminal record and doesn’t pose risk of flight or danger to others, a magistrate may choose to release them on their own recognizance – commonly called an “O.R. bond” (TCA 40-11-115). Rather than pay bail, the defendant signs an agreement to appear in court and obey other conditions in exchange for their release.
What if I’m from out of state?
If you don’t live in Tennessee, you might face a slightly more complicated process when trying to bail out of jail than Tennessee residents. Your ties to the community where you’ve been criminally charged factor directly into the magistrate’s evaluation of how likely you are to respond to your charges, thus if you don’t have any connection to the area, there may be a concern that you will neglect to appear in court. Because of this, the magistrate might set your bond higher if you’re not a resident of Tennessee. In addition, bondsmen can charge you more if you are from out of state. Whereas the maximum premium a bail bond company can charge a Tennessee resident is 10% of the full bail amount, they can charge defendants from out-of-state up to 15% of the total bail amount (TCA §40-11-316).
What about my non-monetary bond conditions?
In addition to imposing a cash-bail amount, a magistrate may also set certain non-monetary conditions for a defendant’s release. Frequently, defendants are required to obey all laws when released on bail. Defendants may also be required to keep a job, or stay away from the victim of the alleged crime. In Tennessee DUI cases wherein the defendant has a previous conviction for DUI (or several other charges related to vehicular assault/homicide), TCA 40-11-118(d) requires that the court consider the use of special conditions of release. These special conditions include the use of an Ignition Interlock Device, submission to alcohol or drug testing, and/or pre-trial admission to a rehab facility.
What happens if I violate my release conditions or fail to appear in court?
If a defendant fails to appear in court or violates the non-monetary conditions of their bond, a judge will likely order forfeiture of that person’s bail and issue a warrant for their arrest. So, you’ll lose the money you paid to get out of jail and have to go back to jail. Once you’ve been arrested again, the magistrate is likely to impose additional conditions of release and set a higher bail amount – that is, if you’re offered bail again. The magistrate may choose to revoke bail entirely (and therefore deny pretrial release) if you fail to appear in court. It’s crucial to show up in court and follow the magistrate’s instructions for your release, because otherwise, you may end up imprisoned until your case has been resolved.
In Tennessee, failure to appear in court is a Class A misdemeanor, the punishment for which will be served consecutively to the sentence received for the original charge that the defendant answered to in court. The prosecution has to prove that you knowingly failed to appear, so it’s important that they furnish proof that you were given notice of your court date. You may be able to avoid a conviction for failure to appear if you prove that you had a reasonable excuse for failing to appear, such as being hospitalized.
If you or your loved one has been arrested for criminal charges, you need an experienced criminal defense attorney to guide you through the resolution of your case. Best & Brock is happy to help you through every step of your case, from bailing out or requesting a bond hearing, to fighting your charges in court, to expunging your criminal record. Reach out to us using our online contact form or by calling our office at (423) 829-1043 to schedule your free consultation today.