The modern American concept of bail dates back to Pennsylvania’s 1682 Frame of Government, giving it a history stretching back almost 350 years. Courts allow defendants to put up bail to guarantee an appearance in court by adding an element of financial risk to refusing to show up.
What does no bail mean for a defendant? Why would a court deny someone bail, and do those who face such a refusal have any recourse?
The court system can seem complicated, but it doesn’t have to be. Read on for more information on the practice of cash bail, circumstances where bail gets denied, and the effects that bail denial has on the court process.
Bail System Explained
Bail refers to the American legal practice of allowing someone accused of a crime to give the court money to guarantee a later appearance at a specified time. Judges have discretion regarding whether they set bail or how high bail gets, but some counties provide guidelines for specific crimes. The court returns the money when the person appears in court.
Right to Bail
In Florida, the law notes that bail represents one of the assumed rights of a defendant in a criminal case unless the case carries a potential penalty of life imprisonment, death, or probation violations. A judge who wishes to deny bail for a defendant must prove that the state has a compelling interest in violating this right.
Bail Bonds
While those with sufficient resources can put up their own cash bail, most defendants lack the resources to give cash to the court on their own. For cases like this, defendants seek out bail bonds. They pay a small fee to a bail bond representative or bail corporation and provide collateral, which can include a house, car, or other valuable piece of property, and in turn, receive a surety bond.
Fees for bail bonds start at $100. For state courts in Florida, the fee comes out to 10% of the bail, while federal court bail premiums sit at 15%. Bail agents sometimes add a transfer fee if they must post a bond outside of the county in which they operate.
Those who cannot afford the fee often enter into payment plans to pay the fee over time, sometimes with interest.
As with cash bail, if a defendant returns for the court date, the money returns to the person who provided it. The bail bond representative keeps the initial fee. If the defendant does not return, the bail bond representative can repossess the collateral.
Bail Jumping
The law sometimes refers to refusal to appear after posting bail as “bail jumping,” or “failure to appear.” Different jurisdictions sometimes clarify this charge by requiring the defendant to fail to surrender within a specific period after the initial failure to appear. When defendants jump bail, they forfeit the bond, and the justice system can apply more civil or criminal charges and issue a bench warrant for the person’s arrest.
Courts do consider excuses for bail jumping, such as medical emergencies. Be warned that bail jumping without an excuse can lead to the denial of bail during subsequent legal issues.
What Does No Bail Mean?
In Florida, “no bail” refers to a judge refusing to allow a defendant to put up cash or a bond as bail. Defendants who have no bail conditions set must remain in jail until the court date.
Judges can choose to set no bail or high bail for many reasons, including:
- likelihood that the defendant will flee
- the nature of the offense
- defendant’s mental condition
- past and present conduct by the defendant
- other criminal cases against the defendant
- the proceeds of criminal enterprises connected to the court case, such as the illegal drug trade
- the potential that the defendant may intimidate victims or jury members
Without set bail, the course of one’s pre-trial period, trial, and post-trial period can change.
Contempt of Court
A judge can also choose to deny bail if your behavior at arraignment seems rude or combative. During your initial arraignment hearing, remain respectful and courteous to the judge and any officers of the court you encounter. You want the judge to believe you’ll cooperate with the justice system if you want to receive a favorable bail decision.
Own Recognizance (OR) Release
Sometimes a court chooses to set bail without monetary requirements. Some jurisdictions call this an “own recognizance” or “OR” release, which requires only a promise that the defendant will return to court for trial. You may see this referred to as “no bail” in certain contexts, but this article will cover the denial of bail rather than own recognizance releases.
Community Connections
When considering whether to set bail for a defendant, courts often look at the extent to which the defendant has roots in the community. If a defendant has a family in the community, a stable job, an owned business, or other reasons to stay within the community, the court will often feel more inclined to set bail. If defendants lack meaningful connection to the local community, however, the court will weigh the possibility of the defendant leaving before trial.
Threat to the Public
A court may also deny bail when a defendant seems to present a threat to the public. Ownership of firearms, a history of violating court orders, and a lack of remorse can lead a judge to refuse to set bail.
Conditional Bail
A court can sometimes impose conditions on bail in response to these factors. Conditional bail adds rules that the defendant must follow while out on bail.
Some common bail conditions include:
- not going to a specific location, such as a victim’s place of employment or a location at which the prosecution alleges the defendant participated in a criminal enterprise
- remaining employed or continuing to search for work if employment has been terminated
- not possessing or handling weapons
- maintaining a curfew
- avoiding the use of drugs and alcohol
- not contacting certain individuals, such as victims or alleged criminal associates
A defendant who does not agree to these conditions may face bail denial. Authorities might detain a defendant who violates these trials or hold the defendant in contempt of court.
Implications of No Bail
The chief bail denial consequences involve being in jail while you wait for trial. You may spend months awaiting trial in jail, as attorneys can take a lot of time to prepare for a case, with more complex cases needing more time. Many people lose their jobs or suffer significant damage to their relationships with friends and family as a result of time spent awaiting trial in jail.
Employment
If your judge sets no bail, you should contact your employer as soon as possible. Inform any relevant parties that you will spend time awaiting trial in jail. Your employer may choose to keep your position filled or let you go, but you will have better chances of staying employed if you communicate with your employer.
Family Issues
Some families face great hardship trying to stay together while waiting for trial with an imprisoned family member. While people remain innocent until proven guilty under the law, family members may choose to pursue divorce or formal separation during this period.
Speedy Trial
A judge refusing to set bail may benefit you if you want your trial date sooner. Courts work faster to bring those who remain in custody to trial, and they often reach sentencing faster as well in the event of a guilty verdict.
Not all trials proceed in the same way, though. Don’t assume that your trial will always come faster because a court denies you bail, as many people sit in jail for years awaiting court dates.
Does Bail Affect Sentencing?
Some studies have indicated that when a judge refuses to allow a defendant bail or sets it higher than the defendant can access, sentences stretch longer. It remains unclear whether the bail decision itself leads to further bias from the judge against the defendant or if the sentences get longer because similar factors, such as violence involved in the offense or the potential for intimidation, influence both judicial bail decisions and sentencing.
Trial Preparation
Without bail, trial preparation often gets harder. You have some rights under the law that affect trial preparation, such as access to legal counsel. Recent efforts to limit prisoner communication have put some of these rights in flux in Florida’s carceral system, though, and defendants held in jail face restrictions on their activities that would make such preparation harder regardless.
If you feel that a stay in jail will affect your ability to prepare for trial, discuss this with your defense attorney before your bail hearing. Your defense attorney may have advice regarding how to present that issue during the hearing and increase your likelihood of receiving bail.
Time Served
While a defendant who does not receive bail needs to remain in jail during the lead-up to the court date, the justice system credits this time against any sentence the defendant faces after the trial. Someone who spends three months in jail waiting for a court date due to a lack of bail and receives a six-month sentence will often spend less than three more months in custody. This time also applies to Florida laws regarding minimum time served.
This only applies to time served related to the offense in question. If you wait three months for a trial related to a drug charge, the time served will not apply to a separate assault charge.
Prosecutorial Pressure
Many defendants denied bail encounter more pressure from prosecutors to plead guilty to an offense in exchange for a reduced sentence.
For those who want to get out of jail and return to their homes faster, an exploding offer often gives the fastest route out of state custody. These offers lead to more convictions, with some estimates indicating that more than 15 million criminal cases end in a guilty plea bargain each year.
Exploding Offers
Some prosecutors use “exploding offers” to encourage quick guilty or no-contest pleas from those facing excessive bail or bail denial. An exploding offer comes with a time limit. For instance, the prosecutor might offer a sentencing recommendation of time served if the imprisoned party enters a guilty plea within the next two weeks.
In some cases, prosecutors present exploding offers that expire at the initial arraignment. Defendants worried about the possibility of bail refusal often take them.
These bargains benefit prosecutors and public defenders who deal with many criminal cases each year. They also leave defendants with criminal records they may not have earned and represent potential miscarriages of justice.
Bail Alternatives
“No bail” may take on a different meaning in Florida in the near future, as the term has in other states like California. No bail or zero bail also sometimes refers to legal guidance to set bail at $0 for some crimes.
These changes can come from different sources within the system. Some states pass laws limiting money bail to certain offenses and moving others into the “no bail” category, while others discourage it through legal precedent. District attorneys also sometimes direct their subordinates to avoid seeking cash bail in favor of other checks on defendants who might not return for a criminal trial.
Jurisdictions that use this type of no-bail approach use other means to ensure defendants return for trial. Pre-trial supervision and electronic monitoring systems afford courts more confidence that a defendant will attend trial without the need for any financial risk.
When Bail Isn’t an Option
“What does no bail mean?” differs from defendant to defendant. Some face astronomical bail which they cannot pay even the fees for, while others have bail outright refused. Bail refusal gives prosecutors several advantages over the defendant and often leads to a guilty plea.
If you’re facing bail amounts you can’t afford to pay in Orange County, Bail 2 GO can help. We offer flexible payment plans with no collateral or financing fees, treat clients with varying credit ratings with compassion, and can determine eligibility for our services within minutes. When you contact us, our staff will ask you about your situation and straighten out your bail situation as soon as possible.
