How the Bail System Works in California
When someone faces criminal charges in California, the issue of posting bail inevitably arises. While the State of California has made it unconstitutional for someone to be held on bail strictly based on being able to afford it, judges still have a significant amount of latitude in deciding whether bail is appropriate to the case and how much to impose.
Simply put, bail is money that must be posted with the court for an inmate to be released to ensure they will appear for future court appearances. The amount of bail will vary depending on the crime involved.
As noted, people can't be held on bail solely because they cannot afford it. Clear and convincing evidence must prove that detention is necessary to protect public safety. In Los Angeles County, only people arrested for serious or violent felonies can be held on bail.
All others must be released on their own recognizance (OR release), so they do not have to pay anything. If the judge decides to release you “OR,” you simply promise to attend your court appearances.
Some are given additional restrictions, such as surrendering their weapons or a stay-away order from the alleged victim, which is common in domestic violence cases.
Under certain circumstances and with specific crimes, the judge will deny you the right to post bail. However, most of the time, bail is required. Let's discuss the question of bail in more detail.
What Is Bail?
Bail is essentially a financial guarantee, typically provided by the defendant or a bail bondsman, required for an individual's release from custody pending trial.
This guarantee ensures that the accused person will attend all requisite court proceedings. Failure to appear in court often results in forfeiture of the bail amount and additional legal consequences.
Under Penal Code 1305 PC says, "A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear."
The bail amount is refunded once the case is resolved. In California, the bail process is regulated by specific rules designed to ensure a fair and equitable system.
All California counties have their own bail schedules that set the amount for each type of crime. In Los Angeles County, there is a felony bail schedule and a misdemeanor bail schedule. Nearly all arrested people get released on their own recognizance. As noted, only those arrested for serious or violent felonies may be held on bail.
There are different ways to post bail, such as through cash bail, through a bail bondsman, which is the most common, and through a property bond, meaning that you allow the court to place a lien on your property. If you fail to appear in court, they can initiate foreclosure proceedings against you.
What Are the Conditions to Stay Out of Custody?
Arrestees in Los Angeles County who get released without bail might still have to comply with specific requirements as a condition of staying out of custody while their case is pending, such as the following:
- Travel or driving restrictions;
- Stay-away order;
- Surrender weapons to police;
- AA meetings;
- Drug and alcohol testing;
- Alcohol or drug abuse treatment;
- Mental health treatment;
- Electronic monitoring;
- Home detention;
- Ignition interlock device.
What Are the Options for Release After an Arrest?
When you're arrested and charged with a crime, the court will hold a bail hearing to determine what to do with you between your arrest and trial. The judge has three options for deciding your release, as discussed below.
Own Recognizance (OR)
Being released on your own recognizance means you are released without having to post bail on the promise that you will return for all court dates. In many counties (like Los Angeles), OR is the default unless there is significant cause to impose bail, such as if you're charged with a violent felony or a flight risk.
Additionally, the judge may impose additional conditions for your release—for example, you may face travel restrictions, a curfew, protective orders, etc. Violating these conditions could result in you being re-arrested and kept in custody.
Held on Bail
In this scenario, you are held in custody pending trial unless you can post the bail amount imposed by the judge.
Held without Bail
In certain extreme cases, such as when you're deemed an imminent threat to public safety, the judge may opt to keep you in custody without bail—at which point you remain in jail until your trial is concluded.
What Are Bail Schedules and Amounts?
As noted, California counties each have a bail schedule showing a list of bail amounts for different crimes.
The amounts vary from county to county and crime to crime, reflecting local policies and crime rates. However, judges retain discretion to adjust these amounts based on the specifics of a case.
Judges typically weigh the following key factors when deciding on whether to impose bail and in what amount:
- Your previous criminal record;
- Whether you are considered a flight risk;
- The severity of your alleged crime; and
- Your ability to post bail (remember, you can't legally be held simply because you can't afford bail).
How Can You Post Bail?
As noted, there are three main methods to post bail in California: cash bail, property bond, and bail bond.
Cash Bail: The defendant or someone on their behalf pays the full bail amount in cash. The cash bail is returned minus administrative fees if the defendant appears at all court proceedings. The significant advantage of cash bail is its simplicity, but it can be financially burdensome.
Property Bond: Property bonds involve using real estate as collateral to cover the bail amount. A professional appraisal is necessary to establish the property's value. While a property bond allows for larger bail amounts, it involves more complex legal procedures.
Bail Bond: The most common way to post bail, a bail bond involves a bail bondsman who agrees to pay the full bail amount if the defendant fails to appear in court.
The defendant or a cosigner pays a fee to the bondsman, typically a percentage of the bail amount. California law caps the fee at 10 percent.
This method can make bail accessible to those who cannot afford the full amount, but non-compliance with court requirements can lead to additional costs—and if you fail to appear, the bail bondsman will attempt to collect the total amount of bail from you.
What Happens to Bail When the Case is Over?
Once your case is resolved, the court releases (exonerates) your bail. Exoneration occurs when:
- The criminal case is concluded,
- The court orders you to attend a Penal Code 1000 PC drug diversion program,
- You are declared incompetent to stand trial, or
- You are committed into custody after a guilty verdict.
Suppose you posted cash bail and were convicted that includes fines or restitution. In that case, your bail will be applied to those penalties.
What Is the Role of a Cosigner?
If someone can't afford a bail bond alone, they may enlist someone to obtain it on their behalf—i.e., a cosigner. A cosigner agrees to take responsibility for the defendant's appearance in court and may be held financially liable if the defendant fails to comply.
Cosigning a bail bond is a significant commitment and should be considered carefully.
What is the Role of the Attorney in Bail Hearings?
A California criminal defense attorney can be crucial in obtaining an OR release for you or ensuring the bail amount is fair and accessible.
The attorney may present evidence to show that an OR release is appropriate, negotiate for lower bail, or request what's known as a “Humphrey hearing” to determine whether you're being held due to an inability to post bail.
This is where the court ensures that you are not incarcerated only because you lack the financial resources to post bail to get released.
Recall that you cannot be held in custody because you cannot afford to pay the bail amount. If you cannot afford to pay, the court should release you as long as it would not threaten public safety.
If the court finds your favor, they must release you on your own recognizance. You can contact our law firm by phone or via the contact form. Eisner Gorin LLP is located in Los Angeles, CA.