Bail Bonds and the Presumption of Innocence

courthouseWhen a person is presumed innocent until proven guilty, it stands to reason that no punishment should be meted out until there is a final verdict of guilt. And yet it can reasonably be said that pretrial detention, or being put in jail before the case against him is even brought to court, constitutes punishment that argues strongly against any defendant’s right to be presumed innocent until proven guilty.

And yet a defendant’s right not to be punished or put in jail before being found guilty must also be balanced by the court’s interest in making sure that the defendant actually shows up in court for his trial. Sometimes a defendant has that kind of social standing that is an assurance in itself to the court that the defendant will not abscond. Should the defendant post a cash or property bond, on the other hand, the court assumes that defendant’s interest in recovering the money or property he put up as surety will be enough of a guarantee to his attending the court hearings. This “bond” in no way constitutes punishment because the money or property is not being confiscated or taken away by the court. If the defendant does as he promises, to attend the scheduled court hearings, there is a reasonable assurance that any property he posted will not be taken from him. In addition, any amounts of money filed as a cash bond will eventually be returned, less court fees, regardless of whether the defendant is eventually found guilty or not.

In the event, what happens most of the time, given its prevalence in the court system, is that the bail amount set down by the judge is too high for the defendant to afford. In such an instance, his only recourse is to go to a bail bonds san diego downtown company.

There have been a number of criticisms of the bail bond industry to the effect that it is an industry that profits off of people’s misfortune, or that it is a commercialization of the justice system. But to a very real extent, for many people caught up in the criminal justice system, bail bonds is the only way by which they can gain some measure of equality before the court.

gavelThose who can afford to do so will post a cash or property bond and be released by the courts before trial. Those who have the standing for it in the community will possibly be released on their own recognizance. But what about those who do not have that kind of socioeconomic standing in the community, and who cannot afford to pay for their bail? Many of these people turn to bail bondsmen …

Unjust Imprisonment and the Right to Counsel at a Bail Hearing

justiceEver since the imposition of statutory bail schedules where standard rates or amounts were set as bail for certain specific offenses, courts and judges have become lax about allowing a defendant to be represented by counsel during a bail hearing.

There is what is known as the 48-hour rule, in which a defendant who is arrested should be expected to appear in court within the next 48 hours after his arrest to determine not only the validity of his arrest but also whether there was probable cause for his arrest if arrested without a warrant. Formal charges are filed against him during this time, and the judge makes a determination on his right to bail. This 48-hour rule was imposed in order to prevent the injustice of keeping a defendant locked up for an unreasonable length of time during which he may not even know what the charges against him are. To a certain extent, this 48-hour rule is intended to prevent the unjust imprisonment of a defendant, particularly when he is charged with a bailable offense and should have been entitled to be freed upon posting bail.

The bail hearing, which is often the initial appearance of the defendant in court, is considered a critical stage of the criminal proceedings which should entitle him to the benefit of counsel. But because these hearings are mandated to take place soon after an arrest, a defendant does not usually have the chance to find a lawyer for himself or to be assigned one. Many times, bail hearings take place with only the defendant facing the judge. The judge makes a determination on whether or not the defendant is allowed bail, what the bail amount is, and what other possible conditions he deems necessary to attach to the bail.

lawyerThe reason counsel should be present during a bail hearing is because it is a very critical stage of the proceedings: much of a defendant’s rights could be lost without argument. An advocate could request the granting of bail even if the judge denies bail, based on certain situational peculiarities. Counsel may also request the lowering of the amount of bail if there is simply no financial capacity to afford it, thus making it “impossible” for the defendant to afford, thereby bringing it under the ambit of the constitutional prohibition on excessive bail. Sometimes, it can also happen that a defendant ends up agreeing to plead guilty to a lower offense in exchange for the early termination of the case. Contested charges could mean a lengthy trial while pleading guilty allows the court to make a judgment and pronounce sentencing immediately, thereby ensuring a speedy grinding of the wheels of justice.

Of course, …

Bail Bonds in a Bail Hearing

justice 1A bail hearing is a court hearing in which a judge hears motions and makes a decision regarding a defendant’s bail. There are two possible outcomes: that the defendant is granted bail, or is denied bail. If bail is granted, the defendant can make a motion to request the lowering of the bail amount in a bail reduction hearing or to make changes or adjustments regarding any conditions that may attach to the bail.

A bail hearing can take place as part of arraignment proceedings in which the formal charges are presented, or the bail hearing can be conducted independently. Typically, a bail hearing is required to be conducted soon after an arrest is made after the defendant has been placed in jail. The timeframe varies, but bail hearings are usually mandated to be scheduled from 48 to 72 hours after an arrest has been made. This is to insure against the possibility of unjustified imprisonment or prolonged pretrial detention, especially when a defendant has a reasonable right to be released on bail based on the crime with which he is being charged.


While there is a constitution prohibition against excessive bail, it often happens that a judge may set a higher than average amount of bail if he deems it necessary to ensure the defendant’s appearance during the trial. Otherwise, a defendant can simply skip bail and, if caught, simply pay the bail amount without a second thought. The bail amount, therefore, has to be substantial enough to ensure the defendant’s continued appearance in court.

And yet the prohibition against excessive bail is based on the principle that a defendant is presumed innocent until proven guilty, and should not unjustifiably suffer pretrial detention before the charges against him are proven. In other words, the bail amount should not be so excessive as to be impossible for the defendant to afford.

The line between what is excessive and not excessive bail is debatable, though it often depends on a judge’s discretion. Should the amount be too high for the defendant to afford, however, he can seek the help of a bail bonds bakersfield company.

The services of a bail bondsman are comprised of an agreement with the defendant. In exchange for the payment of a non-refundable fee, which is usually set at ten percent of the total bail amount, the bail bondsman will then act as surety for the defendant and post a surety bond to secure the defendant’s release on bail. Many defendants who cannot afford a cash bond will at least be able to afford the ten percent bail bondsman fee, thereby allowing him to exercise his right to bail even though, in his perspective, the bail …

The Exceptions to the Right of Bail

prison 1In terms of constitutional provisions, the only thing that is set out in the Bill of Rights is that which prohibits “excessive bail.” There is nothing in the law, whether in the United States Constitution or whether in State laws, that declares that bail is an absolute right guaranteed to any citizen. There is no such thing as an absolute right to bail.

The main purpose of bail is to guarantee the defendant’s presence during his scheduled court hearings. When a defendant posts a bond in the form of either cash, property, a bail bond, or surety, the bond will be forfeited should defendant abscond. The amount of bail, therefore, should be substantial enough to compel the defendant’s presence during trial. Otherwise, he loses the cash or property he has put up for bail.

prison 2In general, however, and aside from certain exceptions, courts are in favor of granting bail to the defendant. Numerous studies have shown that whether or not the defendant is free or is in prison before his trial can have a huge impact on how the case eventually turns. A defendant who is incarcerated before his trial has very limited means of preparing for his defense. Granting bail by a bail bonds rancho cucamonga california company will help ensure as fair a trial as possible for the benefit of the defendant.

In certain instances, however, bail must be denied, and the defendant is expected to remain in jail before and pending the resolution of his case. Each case is different, and ultimately the judge’s discretion will carry the most weight, based on his appreciation of the facts of the case, the defendant’s background and criminal history, and the safety and welfare of the public. Some of the factors that the judge takes into considerations, and which could constitute exceptions to the right of bail, include the following:

  • If the defendant is a repeat offender and was only out on probation or parole
  • If the defendant is accused of a severe crime, where the possible penalty is either death or life imprisonment
  • If the defendant is a flight risk and is expected to skip out on his bail once released
  • If the defendant poses a threat or danger to the community, such as when they are facing charges for a violent crime, and there is enough evidence to the effect that defendant is most likely guilty of the crime charged. The defendant is then considered dangerous and will be kept in detention for reasons of public safety, also sometimes referred to as protective detention.

The Jail System and the Right of Bail

The jail or penal system of any jurisdiction is an integral part of the criminal justice system as a whole. It is aimed at reducing criminality by incapacitating the offenders, punishing and deterring those who would commit crimes, and rehabilitating offenders. A network of correctional facilities is aimed at punishing, treating and supervising persons who have been convicted of crimes.  In other words, members of society who have been judged guilty of violating laws are punished by being removed from the community and isolated in facilities called jails and correctional facilities. Theoretically speaking, jails and correctional systems are geared towards protecting the public from deviant behavior, punishing those who violate the laws, and hopefully, rehabilitating them before they rejoin the community.

Historically speaking, over the centuries, governments the world over have come up with a penal system that provides certain punishments for certain crimes, and these have, over the years, ranged in harshness and brutality. A jail or a cell in which a prisoner is confined has always been an acceptable practice in most jurisdictions. In these modern times, jail systems are now the norm. Punishment or penalties for crimes have consisted of jail time, and the more severe the crime, the longer the time that should be served. The longest possible time of imprisonment is referred to as LWOP, or life without parole. In these instances, the inmate does eventually die in prison, often of natural causes.


Of course, there are still other forms of punishment, mostly consisting of fines, and in certain instances reserved for the most heinous of crimes in certain jurisdictions, the penalty of death.

There are a number of ways by which a person finally leaves the jail system and rejoins the community:

  • When a person is released after serving his sentence in full
  • When a person is released early on parole, after serving only a portion of their sentence; this is aimed at the rehabilitation aspect of the penal system, and the person is expected to conform to certain rules and guidelines when allowed back into the community.
  • Being released on bail during pre-trial detention

Bail and Pre-trial Detention

prison-fenceStatistics have shown that majority of the people incarcerated in jails throughout the country consist of those who are waiting for trial. This means that a good number of those people who are being detained and essentially “punished” by jail time are persons who have yet to be convicted and found guilty of any crime.

When a person is arrested, he is put in jail and kept there until the date of his first court hearing. In order to prevent this from resulting in a number of people being kept for unreasonable lengths of …