“The hell I care ‘bout getting’ caught, I’m making bail by 12 o’clock…” (c) Mac Boney, rapper extraordinaire
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Hello chickadees, today we are going to talk about
setting and posting bail. For our
chickadees who are unfamiliar with the legal system, bail is an amount of money
set in place by a judge during a pending criminal case that gives the person
facing the charges the option to enjoy freedom from jail while the charges are
pending against them. Once the amount of
bail is set in place, the accused person can either make bail—pay the amount
directly to the court so that, no matter what the outcome of the case is, he or
she can get the money back when the case is over—or the accused can make arrangements
to have a bonding agent to post a bond for them.
The purpose of setting an amount for bail is to ensure
that a person accused of a crime (a defendant) comes to court as required in
order to face the charges against them.
If the defendant doesn’t come to court, or if they violate the bail
conditions set in place by the judge, the bail will either be raised or
revoked, and a warrant will be issued for the defendant’s arrest. There are a couple of things that the judge can
consider when determining whether or not set an amount for bail and how much
that amount should be. Some of the
considerations are:
1.
How long the defendant has lived in the
community;
2.
Whether or not the defendant has a job;
3.
The defendant’s family ties and relationships;
4.
The defendant’s reputation, character and mental
condition;
5.
The defendant’s criminal record and whether or
not they failed to appear in court before;
6.
The seriousness of the offense and whether it is
likely that the defendant will be convicted;
7.
Whether or not the defendant will pose a danger
to the community based on his or her criminal record.
There are many misconceptions floating around about what
posting bail actually accomplishes. Some
people, including Mac Boney (see the introductory quote), seem to think that
once a defendant posts bail, they are free to do whatever they want, and because
they posted bail, no one can do anything about it. In fact, Mac Boney goes on in the song Bankhead to state that after he posts
bail by twelve o’clock, he’s going to go right back to the same corner to
participate in the same activity that got him arrested in the first place.
In reality, posting bail will only guarantee temporary
freedom. In many situations, the only
way a defendant can get to permanent freedom is after the case is resolved with
the help of a licensed attorney.
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While out on bail or bond, the judge usually sets some
other conditions that the defendant must fulfill. These conditions almost always include NOT
GETTING YOUR “OUT ON BAIL” BEHIND ARRESTED AGAIN. Usually, if a defendant does what Mac Boney
proposes and gets caught (again), upon motion of the prosecutor, the judge will
revoke or raise the bail on the case the defendant was already out of custody
on. Then the judge on the new case will
set a bail for that case, too. This
effectively puts the defendant’s lawyer in the uncomfortable position of
convincing both judges that even though you were arrested for say selling dope
while out on bail for selling dope, you deserve to be free.
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Of course, an attorney can only present an argument
for allowing her client to be released on bail if she has been hired. In many cases, a defendant or a defendant’s
family chooses to forgo hiring an attorney in favor of signing away the rights
to all of their worldly goods to get a bonding company to post a bond that
could potentially be revoked. This is what we mean when we say that posting a
bond only grants temporary freedom.
There are two schools of thought when it comes to
bail. In the aforementioned, selling
drugs situation, the defendant would be in the category of those who believe
bail is set too high. In big cases in
the media, for example the Trayvon Martin case, many people tend to think that
the bail is not high enough.
Setting bail is a decision that is totally up to the
judge. Tennessee judges base their
decision on the factors in Tennessee Code Annotated section 40-11-118 that we
wrote about at the beginning of the article.
These factors mean that setting bail is usually done on a case-by-case
basis depending on the defendant. This
is why a low-level dope boy (aka a drug dealer who sells “cheap” drugs on the
corner) and someone like Al Pacino’s character at the end of the movie Scarface could be charged with the same
crime but may need to have different amounts of bail set.
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In some cases, when the charged crime is very serious,
or when there is a high threat potentially posed to the public if the defendant
is released, the judge may determine not to set an amount for bail. Judges tread a very fine line when setting
bail. On the one hand, under the law,
they have an obligation to set a bond as low as the court determines is
necessary to assure the appearance of the defendant at court. On the other hand, if a judge sets bail too
low, the defendant posts it, and the defendant commits another crime, everyone
will accuse the judge of not doing his or her job.
If you know someone who has been arrested, remember
the differences between a bail and a bond.
Think carefully about whether or not it would be best in your situation
to post a bail or to contact a bonding company to post a bond for you or your
loved one. Remember, posting bail or
bond is only the first step in the legal process. You must obtain the services of a licensed
attorney to guide you or your loved one to permanent freedom.
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