Bail is a form of financial guarantee that you will show up in court at a future date to face criminal charges against you. A person released “on bail” has given a judge an adequate basis to believe that they will not flee or pose a danger to the community while charges are pending.
Traditionally in California, “posting bail” has involved depositing money or security with the court as assurance of your future attendance at a hearing or trial. However, the California Supreme Court recently held that it is unconstitutional to hold someone merely because they cannot afford bail, leaving California’s bail system in flux and suggesting the possibility of changes to bail in the future.
The Purpose and Reality of Bail in California
Bail exists to balance two competing concerns. On one hand, a person accused of a crime is presumed innocent until proven otherwise and, for that reason, retains a fundamental right to liberty. On the other hand, some people who face criminal charges can pose a danger to the community or will go on the run if allowed to walk free before their trial.
Bail is not punishment. Instead, California’s bail laws aim only to ensure that criminal defendants show up in court when summoned. The primary tool courts have long used for this purpose is to require defendants to deposit money or post a bond as a financial guarantee that they will appear on their court dates. If they show, they get their deposit back or, if they posted a bond, are freed from its obligations. If they don’t appear, they forfeit their money or must pay back the amount the bondsman paid on their behalf.
The problem is, many criminal defendants cannot afford to deposit cash or buy a bond from a bail bond company (which usually costs around 10% of the cash bail amount). Without the ability to pay, they remain incarcerated for months or more while awaiting trial, even though they don’t pose a flight risk or a danger to the community. In other words, they stay locked up for no other reason than their financial difficulties—which only worsens while they remain behind bars.
How Bail Currently Works in California
Recently, the California Supreme Court ruled it unconstitutional to keep someone in pretrial custody simply because they couldn’t afford to pay bail. In response, the California legislature took up a bill to reform the bail system and to allow for alternatives to cash or bond-based bail, such as remote monitoring and community supervision. However, as it stands, the legislation has not passed. So, for now, posting financial guarantees remains part of the fabric of the California bail system, even while there’s reason to think that might change in the relatively near future.
With that said, here is an overview of how bail usually works in a California criminal case as of mid-2022:
The Bail Schedule
Every California county sets its own standard amount of bail for felonies, misdemeanors, and infractions in a schedule published annually. Here is the 2022 San Diego County bail schedule. Bail can vary widely from county-to-county. In Los Angeles County, for example, bail has been eliminated for most misdemeanor offenses, while the San Diego County bail schedule continues to impose bail for them. By law, however, some serious felonies like murder, aggravated sexual assault on a minor, and death penalty offenses, are not eligible for bail anywhere in the state.
The amounts listed in a county bail schedule represent how much you have to deposit in cash or post via bond to secure release after being arrested and detained in that county. Typically, you give the cash or bond to the police or the clerk of the court in the county where you have been charged.
If you pay or post bond for the scheduled bail amount immediately after being booked and processed, you will usually be released within hours unless law enforcement or the district attorney seeks to increase your bail amount or have you held until your initial court appearance (see below). Additionally, for many minor offenses, the authorities will often agree to release you “on your own recognizance” without requiring that you pay or post any bail, so long as you promise to appear in court if and when ordered to do so.
Your first court appearance for a felony or misdemeanor is called an arraignment. It’s when the formal charges against you are read aloud and you enter your initial plea of guilty or not guilty. At the arraignment, the judge must address your bail regardless of whether you have already paid it and been released, or remained in custody until the hearing. The judge can take various bail-related actions including:
- “Continuing” your bail in the amount set by the county schedule
- Increasing or decreasing your bail amount
- Holding you without bail (if the district attorney establishes sufficient reason to do so)
- Releasing you on your own recognizance
- Imposing bail “conditions” like surrendering your passport, ankle monitoring, drug testing, or supervision by a probation officer
Bail decisions are largely left to the judge’s discretion. In setting bail, the judge will typically consider the seriousness of the charges, harm to victims, your criminal history, whether you pose a flight risk or public safety danger, your ties to the community, your financial resources, and the impact not getting bail could have on your life and family. To be released or remain free after the arraignment, you must satisfy the bail requirements and conditions set by the judge.
At any point after your arraignment, the court can hold a bail hearing to consider requests to modify or revoke your bail. At a bail hearing, a court may hear testimony and review evidence offered to support a modification or revocation request. For instance, your lawyer might make a case for why you will suffer undue hardship unless the court reduces your bail or changes your bail conditions. Conversely, the prosecutor might ask for a hearing in order to prove that you have failed to fulfill your bail conditions and deserve to be returned to state custody pending trial.
As above, the judge has wide discretion in deciding issues raised at a bail hearing. To remain out on bail, you must comply with any modifications the judge imposes. If you are found to have violated your bail conditions, the judge can forfeit your bail amount—meaning you will not get your money back or will have to pay back money the bail bond company pays to the court on your behalf.
Release From Bail/Bond Obligations
Absent any prior modification or revocation of bail by a judge, bail ends when your case ends through an acquittal, a conviction, your participation in a diversionary program, or some other final outcome. If you posted cash bail, you will get that money back less any fines or restitution you must pay. If you posted bond, the end of your case releases the bail bond company from its obligations to the court, and you from your obligations to the bail bond company.
Contact Dod Law, APC With Your Bail-Related Questions
Dod Law, APC, is a team of skilled criminal defense attorneys who represent clients throughout the greater San Diego area. We have worked on more than 6,500 cases on all forms of criminal cases. Attorney Dod Ghassemkhani has over 18 years of experience and is qualified by the California State Bar, so you can rest assured that you’re being defended by an expert in criminal law.
If you face criminal charges and want to understand how bail may affect your rights and freedoms, reach out to us today by calling (619) 814-5110 or filling out our contact form to schedule a free consultation.