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If I bail my friend out of jail am I actually hurting his case?

In the wake of nationwide protests, calls for contributions to ‘bail funds’ have been heard all around the country. And while securing pre-trial release for an accused person is absolutely crucial in many cases, there are a number of good reasons to wait and talk to a legal professional before posting that bail, or even to not post it at all.

The scenario:

Imagine you are home in the evening with your family. Your phone rings, and it’s your brother Tim who has been arrested for DUI. Tim sounds distressed and has never been to jail before, and he’s asking you to post bail so he doesn’t have to spend the night there.

What is bail?

Bail is a security (virtually always money), deposited with a court to ensure that a defendant returns for court. If the defendant doesn’t, the court forfeits the bail and keeps the money. The idea is that whoever put up that money will make sure the defendant reappears.

What is a bail bond?

Commonly people don’t have the cash to put up the bail amount themselves. Even for a misdemeanor, bail can be thousands or tens of thousands of dollars. For a licensed bondsman, courts will accept their bond (literally a written promise) that they WILL pay the bail amount should the defendant skip town or otherwise not appear in the future.

What is the cost?

If you have money, getting someone out of jail is free; if you don’t have money, then it’s definitely going to cost you. Let’s say police set Tim’s bail at $10,000. If you happen to have $10,000, you deposit that with the jail or court clerk and Tim is released. At the close of the case, the money is returned to you in full, no fees or costs. If not, you’re going to need a bond, and the going rate is 10%. That means a bail bonds company is going to charge the family $1,000 to post that bond and get him released. This is basically a ten percent loan, no matter the length of time.

What would bail accomplish?

Unless the arrest was a Friday or Saturday, Tim is almost certainly going to see a judge tomorrow. That judge will make a longer term ruling on whether Tim needs to post bail while his case is pending. In many circumstances (particularly in the era of COVID-19 and efforts to reduce jail populations), that judge is going to release the defendant without bail. Say for example Tim was arrested for DUI at midnight on a Tuesday. Tim calls you around 1AM. Let’s say it takes 2 hours to get a bondsman to get the bail posted. You pay the $1,000 to the bondsman, and the jail takes another hour or two to process Tim out (which on the overnight shift is probably a conservative estimate). He might be released around 5 am, and everyone goes home and sleeps until court at 11:00 AM.

At the 11:00 hearing, the judge sees that Tim has no prior history so orders he can be released without bail. That means that the bail bond is released, and the bondsman is relieved of his or her obligation to make sure Tim shows up. Case closed for the bail bondsman, who just made $1,000 for loaning you money (or at least the promise of money) for less than 12 hours.

The reality is that the judge would have reached the same conclusion, that Tim would be released without bail, if he had still been in jail for the 11:00 AM hearing. Tim would have had to sleep in jail if the family had not posted the bail; so for those 1,000 non refundable dollars, the family purchased a few hours out of jail.

Was it worth it?

Don’t get me wrong; jail is unpleasant. None of us want to imagine a loved one locked up, and our natural instinct is to try and alleviate their apprehension. But to be practical, in all likelihood Tim would have been sleeping most of the time up until court. And at least in my community, jail is not a particularly dangerous place – more like a really dingy hotel with unappetizing starchy food. For many families, that $1,000 is better spent on legal defense, treatment, ignition interlock, or any of the other expenses that will surely arise in getting the better long term outcome for the driver. Tim may lose his job, may lose his license, may incur all kinds of collateral expenses that will strain the family’s resources.

How does a lawyer help?

Talking to a lawyer first can often help make that decision of whether that money is best spent on bail, or on other upcoming court cots. A local lawyer knows what local judges are likely to do with bail amounts, and what other hidden costs might be coming. To be sure, there are times when bailing someone out is going to make their situation better for court. But at least go in to it informed about whether you are throwing good money after bad in these uncertain times. While it’s natural to want to help immediately, in criminal defense we always need to focus on the not just today, but what is best for the client in the long term.