The terms “bail” and “bond” are often used interchangeably. However, these two agreements have fundamental differences that are important to understand when you or a loved one have been arrested.
Part of the confusion between the two words comes from the fact that the full terms are actually “bail” and “bail bond,” respectively. Some individuals fail to make a distinction between bail and bail bond because each service serves the same purpose.
In this blog, we explain the differences between bail and bail bond and why you might use one over the other.
What Is Bail?
If you’ve ever watched a procedural cop drama, you probably have a basic understanding of bail. Essentially, the judge evaluates the severity of a defendant’s alleged crimes and sets a monetary bail amount which must be paid in order for the defendant to be released from law enforcement custody until his or her court date. This amount is used as insurance so that the defendant will comply with all conditions of his or her bail, which always includes showing up in court on a specific date.
When the defendant or an associate of the defendant provides the bail amount in full, the person is paying bail and is set free until his or her trial. This money is returned, minus any applicable fees, when the defendant appears for court and submits a plea.
However, bail amounts can vary and some may be out of the defendant’s means. In order to stay out of law enforcement custody until his or her court date, the defendant may use a bail bond instead.
What Is a Bail Bond?
A bail bond is similar to a short-term loan. If a defendant cannot make bail, he or she may work with a bail bondsman instead. In this case, the defendant or family member makes a payment that constitutes 10% to 20% of the full bail amount directly to the bail bondsman. The exact required percentage depends on state laws, the bail amount, and the bail bonds company policies. Most bail bonds companies require a down payment of 15%.
In addition to paying the down payment, the person seeking the bail bond must provide collateral that could cover the remaining bail amount if necessary. In our last blog, “Collateral: What It Is And How You Can Use It,” we went into detail about common collateral items. As a general rule, collateral must be a tangible asset or assets that are worth the entire bail amount.
If the defendant fails to appear in court or fails to comply with any other set restrictions, the collateral item is seized to cover the bail costs. If the defendant does appear in court then the collateral is released to him or her after their court date, but the initial payment to the bail bonds company is not refundable.
In certain cases, a defendant may be eligible for a signature bond rather than a traditional bail bond. A signature bond is a written contract which legally obligates the defendant to appear in court. Signature bond laws vary by state and this bond type is only ever available to defendants who have been charged with a minor crime and who pose no flight risk.
When Should You Choose Bail?
When you choose bail, you have the benefit of not needing to make a payment to a bail bonds company. However, you should only opt for cash bail when your situation meets the following criteria:
- You can be reasonably certain that you will comply with all the terms of your bail.
- You have the bail money readily available. For example, you have enough money in savings to cover the amount without dipping into your next paycheck.
- You will not need the deposited funds until at least after the court date. While you will get your bail money back, you cannot access it until after the court date. You should evaluate whether or not this unavailability will create financial hardship for you.
If you can confidently describe your situation in these terms, cash bail may be right for your situation.
When Should You Choose a Bail Bond?
In most cases, experts recommend opting for a bail bond rather than cash bail. You may choose a bail bond for any of the following reasons:
- The bail amount would put a large financial strain on you and the bail bond down payment is more manageable. For example, if you have enough cash on hand to cover bail, but doing so may affect your ability to pay rent.
- You do not have cash readily available, but you do have access to assets that can be used as collateral.
- You feel uncomfortable using a large amount of cash for this matter and prefer to have those funds available while waiting for your court date.
If you aren’t sure whether bail or bail bond will work best for your financial situation, discuss your options with a reputable criminal defense attorney and an experienced bail bondsman. These professionals can help you determine which option is preferable given the circumstances.