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What bail and bonds are and why they’re controversial

What happens after you’re arrested, and on what schedule, depends on several factors with the seriousness of the charges against you often being the most important. If the charges aren’t too serious, you’re issued a citation and told to show up in court at the specified date and time.

In more serious cases, to be released until your court date, you will be required to post bail.

Bail sets you free until trial

The judge for your bail hearing is supposed to be considering whether you’re likely to disappear without returning for court, or to commit more crimes, or to somehow silence witnesses, etc. Mainly, the judge should decide whether any of these can be controlled by making you post bail.

Bail is something valuable that you give the court system until you show up in court at the time and place you’re told to. If you keep your court date, the bail is returned to you. If not, the court keeps your stuff and issues an arrest warrant for you.

The “something valuable” is usually a lien on your property, cash, or a bond. A bond is a deposit provided by a bail bondsman who guarantees you will show up in court. This is often known as “cash bail.”

If you cannot post bail, you will stay in custody until your court hearing or until the conclusion of your trial no matter how long it takes.

Bail system under scrutiny

Controversies about cash bail have a widened in recent years for too many reasons to fully list here.

Defendants who can’t make bail, it has been argued, are in jail for being poor while others are free simply for their wealth, a difference that some argue also winds up being racially discriminatory. Access to a lawyer is more difficult in jail, resulting in unequal representation for defendants depending on their race or economics.

Defendants who can’t make bail are also more likely to plead guilty to gain release, and the criminal conviction then restricts their future opportunities and can affect the thinking of jurors in future legal proceedings.

State and local court systems, it has been argued, have come to depend on the cash bail system for funding, and therefore judges have a conflict of interest when making bail decisions.

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