If a suspect has been arrested and lodged in jail, a Bail Hearing can be set to determine what terms and conditions will be required for their release from custody as the case proceeds. The issues of release from jail, or avoiding jail altogether during the pendency of Defendant’s case, can also be addressed at Arraignment in Justice Court, the Initial Appearance in District Court, whichever is applicable, or even at a Bench Warrant Hearing in either court where there is an outstanding warrant for Defendant’s arrest.
Various factors will determine what option the Court will consider, including evidence showing whether Defendant poses a safety risk to self, alleged victims, or the community at large, or is a flight risk.
If the Court finds probable cause to detain Defendant and determines that Defendant must post bail to “insure” or guarantee that they will appear at subsequent court hearings, the Court must “immediately make a bail determination,” which must “coincide with the recommended bail amount in the Uniform Fine/Bail Schedule,” unless the Court finds “substantial cause to deviate” from the schedule. The bail schedule is a detailed chart that lists preset bail levels for various crimes. However, the same degree of crime can result in different bail amounts based on whether Defendant’s criminal history is rated as “poor” (high recidivism), “fair,” “moderate,” “good,” or “excellent” (clean criminal record). In most cases, the judge will follow the bail schedule unless there are extenuating circumstances warranting a deviation from the normal guidelines.
Article I, section 9, of the Utah Constitution and the Eighth Amendment to the United States Constitution prohibit the Court from imposing “excessive” bail amounts. Moreover, bail is seldom denied and for most criminal offenses is a “matter of right.” In order for the judge to deny bail, Defendant must either be charged with aggravated murder — Utah’s only crime that is subject to capital punishment — or be charged with a felony and, e.g., be adjudged to be a flight risk. Nevertheless, in many cases even Defendants who are charged with felonies can be granted bail. Bail is not a means of punishing Defendant, nor should there be a suggestion of revenue to the government.
There are at least three primary types of bonds:
Surety (or Bail) Bond
A third party (e.g., bail bondsman) agrees to be responsible for Defendant’s bail amount. Typically, the bail bondsman will charge Defendant a minimum of, e.g., 10% of the total bail amount set by the Court up front (but no more than 20% by law). This fee is non-refundable and represents the bail company’s compensation for their services. If Defendant does not appear in court, the bail bondsman has guaranteed as surety to pay Defendant’s total bail amount and the Court orders “forfeiture” of the bail amount, unless a bounty enforcement agent (i.e., bounty hunter) can track down Defendant who has “skipped.”
To offset the risk of flight, and for large bail amounts, the bail bondsman often requires Defendant to collateralize the bond, i.e., produce an asset (e.g., a car) that equals the face value of the bail amount. If Defendant absconds or fails to appear, the bail bondsman can take possession of the asset. The bondsman may also revoke the bail bond in situations where, e.g., a Defendant or co-signer provided false information to the bond company; the prosecutor filed new charges; the court increased the bail amount above the original bond amount; Defendant fails to provide the bondsman current contact or employment information; etc.
Cash Bail
Sometimes the Court will order a “cash only” bond, which is, again, typically set at 10% of the total bail amount. However, if defense counsel can persuade the court to reduce the bail to an amount that is not cost prohibitive, there is an incentive to pay a cash bail, as it is refundable to Defendant upon resolution of the case assuming Defendant has not violated any bail conditions.
Property Bond
Defendant may also collateralize a bail amount set by the Court by putting up the equity in property or a house equal to the face value of the bail amount (as determined by appraisal). If Defendant fails to appear for scheduled court dates, the court can enforce the lien and repossess the property or house. This type of bond is less common.
Not all crimes warrant the need for a Bail Hearing before a judge. Jail personnel often have a bail schedule that they refer to for minor offenses. In these circumstances, jail officers can issue a standard bail amount and release Defendant with little or no time in jail.
Alternatives to bail
Pre-Trial Service Release
In certain scenarios, defense counsel can convince the court to allow Defendant to avoid posting bail and, instead, arrange through Pre-Trial Services (PTS) to wear an electronic ankle bracelet monitor, e.g., GPS or a SCRAM (a secure, continuous, remote, ankle monitor).
Release on “Own Recognizance”
The most favorable option is release on “Own Recognizance” (OR), in which Defendant promises to appear in Court at all subsequent hearings without posting a bail bond or being supervised by PTS. OR release is generally only granted in cases where Defendant did not commit a violent crime and, e.g., is not classified as a flight risk.
