Bail, also known as a “recognizance of bail“, is a court order that lets you remain in the community while your case is in the court system.
A bail hearing is not a trial. The judge or justice of the peace doesn’t decide whether you’re guilty or innocent. Instead, they decide whether or not you should go back into the community while your case is in criminal court. If you’re denied bail you will be kept in custody while your case is ongoing.
A bail hearing is also known as a show cause hearing. That is because usually the Crown must “show cause” why you shouldn’t be released from custody on the least strict type of release: an undertaking without conditions.
An undertaking without conditions lets you be released from custody as long as you promise to go to court when required. If the Crown wants you to follow more conditions if you’re released, they must explain to the judge or justice of the peace why.
Sometimes, you may need to “show cause” why you should be allowed to go back into the community while your case is in court. This is called a “reverse onus” bail hearing. A reverse onus bail hearing happens if:
- you were already on a release and now you’re facing new, unrelated criminal charges
- you were already on a release and you didn’t follow your conditions, and have been charged with failure to comply
- you were charged with a drug offence involving the sale of drugs
- you were charged with certain serious offences
At a bail hearing, a judge or justice of the peace will decide if you should be held in custody or released. If you’re granted bail, you will likely have to follow conditions given to you by the court.
How Bail Is Determined
A judge sets the bail amount and generally adheres to standard practices depending on the crime. For example, a petty and nonviolent offense could have a bail amount of $50-$2,000 depending on the jurisdiction. However, judges are also able to set higher or lower bail amounts for different circumstances. The amount is determined based on additional factors such as whether the defendant is a first offender or has a prior criminal record; whether the person is a potential flight risk; and how dangerous the person is to the public.
Along with the bail charge, the court can issue two types of bond: secured or unsecured. With a secured bond, the defendant either pays – or promises to pay, using the services of a bail bond agent – an amount of money before he or she is released from jail pending trial. With an unsecured bond, the defendant is released upon his or her written promise to appear in court, and if he or she doesn’t appear, must then pay the full bail amount.
Misdemeanors come with much lower bail amounts than felonies do. In both categories, there are different classes that determine the duration of punishment and the bail amount. In some jurisdictions, there are bail schedules that recommend a standard bail amount. For example, for a Class 1 Misdemeanor offense, the minimum jail time could be between 1 and 45 days with a suggested bail cost of $100-$500. Alternatively, for a Class E Felony offense, the minimum jail time could be 15 months with a suggested bail cost of $25,000.
Bail As Incentive
Another reason bail costs are so high is that bail is designed to act as an incentive. In order for the bail money to be refunded at the end of trial, the defendant must attend all court appointments and not violate any other terms of bail (for example, not leaving the state, not committing any additional crimes, etc.). The high cost of bail means that defendants are much more likely to adhere to the conditions of their release so that they don’t lose all the money they (or a bond agent or family member) have put up.
If you’re dealing with an unexpected arrest and need assistance with posting bail for a friend or loved one, contact our Bail Bonds Division today. We’ll work with you to alleviate the high cost of bail and to ensure your loved one’s quick release from jail.