The Process of Bail

Interviewer: How does bail work? How is bail set? Do I have to pay it all in cash? Will I get it back?

Martin Kane: If you are arrested and not released from the precinct with a desk appearance ticket, you will be brought before a judge for arraignment within 24 hours and, with our help, it is usually much sooner. The primary purpose in having you appear so quickly before a judge is to get you out of custody. The DA will usually tell the judge all the reasons why she thinks you are a risk to the community or a flight risk and will often demand that an unreasonably high bail be set. Your attorney should be prepared to argue persuasively that you are no risk at all; that you have strong community ties and that the People’s case is weak. I always recommend that as many family and friends as possible attend the arraignment. This almost invariably impresses the judge.

In Most Misdemeanor And In Many Felony Cases, The Defendants Are Released Without Any Bail.

In most misdemeanor cases and in many felony cases, we are able to persuade the judge to release our client without any bail, despite the wails of the DA. Sometimes, the judge does set bail and we argue to keep the bail as low as possible. You should be aware that this bail hearing at arraignment is one of the most crucial stages of the case. Once the judge sets bail, no other criminal court judge will lower that bail without an extraordinary change of circumstance. A higher court judge can change the bail in a Supreme Court proceeding, but that is rarely successful. Your attorney must be prepared to argue persuasively at arraignment for no bail or low bail. If too high a bail is set, you could remain in jail unnecessarily for many months.

Cash Bail And Insurance Company Bond

There are two types of bail commonly used-cash bail and an insurance company bond. In general, it is highly preferable to use cash bail if possible. The judge, if he requires bail, will usually specify different amounts for an insurance company bond (usually higher) and for cash bail. For instance, she might say “2,000 insurance bond or 1,000 cash.” Here’s why cash is preferable:

If the cash is IMMEDIATELY available, it can be immediately posted and you’ll be out of custody within 15 minutes. Notice that I said “immediately” available. Your family can’t tell me they’ll be back with the cash in 20 minutes. By that time you’ll be off to Rikers Island. Tell your family to bring as much cash as possible to the arraignment and to let the lawyer know exactly how much they have with them. If they don’t need it, they can always put it back. The good news is that your family will get every dime back if you’re not convicted. If you are convicted, the city will return it all when the case is over, less a nominal fee of 3%.

A Bail Bondsman Usually Charges A Substantial Fee

If you use a bondsman to post an insurance company surety bond, the bondsman will charge you a substantial fee for posting the bond and will require that your family put up considerable collateral to protect him if you don’t appear as required. The fee is nonrefundable and, together with the collateral, you may have to put up as much or more than if cash bail was used. There are other good reasons why cash bail may be preferable and you or your family should discuss them with your attorney.

There are some other forms of bail that are rarely used, and then only when bail is very high. One other issue involving bail is that the Court, at the DA’s urging, will sometimes require a “bail sufficiency hearing.” This means that your surety will have to show exactly where the money for the bail came from and how it was obtained. If this unfortunate situation occurs, you will need a very knowledgeable and experienced attorney to navigate the issues and questions presented by the DA’s forensic team.

You can contact The Law Office of Martin D. Kane by calling (718) 793-5700.