When a person is arrested for a crime they may be held in jail until a verdict is returned in their case. Oftentimes, this can take months. However, a person may be released pending a possible conviction if they pay bail.
The Eight Amendment guarantees “excessive bail shall not be required.” It is important to realize that there is no absolute “right to bail” in every case; instead, that if bail is granted it should not be “excessive.” The purpose of bail is to assure defendants appear at all of their scheduled court dates. Bail is excessive where it is higher than an amount reasonably calculated to assure the presence of the accused at court. Courts will deny bail in cases where a defendant appears to be a flight risk or likely to commit additional crimes if released on bail.
The amount of bail required in any case is normally determined according to a preset “bail schedule.” Each individual violation of the penal code has predetermined amount of bail associated with it. When a person is arrested and booked into jail, the San Diego Sheriff’s Department will calculate the amount of bail required for release based on the sum total of the crimes that person is accused of committing. For example, a person arrested for assault with a firearm ($30,000 bail) and kidnaping by force ($100,000 bail) would have to provide $130,000 in bail to be released before their arraignment.
A person arrested for a crime and held in jail will normally appear in court for arraignment within three business days of their arrest. At that time a judge may raise or lower that person’s bail according to arguments made by the prosecutor and that person’s defense attorney. That person is entitled to a bail review hearing within a few days if they want to request lower bail.
Rarely does a person have adequate funds on hand to pay the full bail amount upon arrest. Oftentimes, a defendant will need the assistance of a “bondsman” in order to secure bail. Bondsmen will pay a person’s bail for a fixed fee, normally 10% of the posted bail. Thus, a person with $130,000 bail would need to pay a bondsman $13,000 to secure the bondsman’s services. Many bondsmen will offer a reduced fee if the person hires a private defense attorney, normally charging 8% instead of 10%. Thus, a person with $130,000 bail would now only have to pay a bondsman $10,400, a saving of $2,600.
Cash strapped defendants often face the dilemma of having to decide between hiring a bondsman or an attorney. Hiring a bondsman may get the defendant out of custody quickly for a few weeks pending trial, but does nothing to ensure they will stay out of custody if the defendant’s case goes badly. Hiring a good defense attorney is more economical because a talented attorney can oftentimes get the bail reduced following arraignment. More importantly, a knowledgeable and experienced defense attorney can ensure the defendant gets the best possible result overall, whether exonerating an innocent defendant or limiting the amount of time a guilty defendant receives as punishment.