Bail

Bail is the posting of collateral with the court to secure your release from jail while your criminal case is pending. The purpose of bail is to ensure that you appear for court and in some cases to protect the public. In Pennsylvania, the permissible forms of collateral you can post with the court are money, securities, bonds, property or the bond of a licensed bail bondsman. Article 14 of the Pennsylvania Constitution states:

[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident and the presumption great.

What are the Types of Bail in Pennsylvania?

The courts have alternatives when setting your bail. Below are the types of bail a Pennsylvania judge may set in a criminal case:

Release on Recognizance (ROR) : ROR means that you will not have to post anything to be released. By signing the bail bond you agree to appear to court and comply with the standard conditions in the bail bond such as refraining from criminal activity. ROR is simply a promise that you will appear for court in the future. ROR is typically set in minor cases such as first offense DUIs or possession of a small amount of marijuana.

Unsecured Bail : Unsecured bail means that you will not have to post any money but you will be liable for a sum of money if you do not show up to court. For instance, the court may set your bail at $5000.00 unsecured. If you do not show up you will have to pay $5000.00

Pointer : The reality is that if you do not show up, the Commonwealth will issue a warrant for your arrest in lieu of collecting the $5000.00.

Secured Bail : Secured bail means that you must post money to be released from jail. For instance, the judge could set your bail at $10,000 cash. You must post $10,000.00 cash or another accepted security to be released. The courts also have the option to set the bail at 10% of the total amount if the court deems that amount sufficient to secure your appearance in court. For instance, the judge could set your bail at 10% of $10,000. You would have to post $1000.00 to be released from jail.

Pointer: The County where you post cash bail will typically keep 40% of your bail at the end of the case and return the rest to you so long as you turn yourself in at sentencing. If you do not return to court as directed you will forfeit the bail money posted. This amount varies from county to county.

Release on Nonmonetary Conditions : This means that you agree to comply with certain conditions the judge imposes in order to be released from jail. The court can get creative in imposing conditions. I have seen this provision used in cases involving heavy drug users who are repeat offenders. I have seen district judges condition the defendant's release upon entry into an inpatient treatment facility. Judges will also impose the condition that the defendant be released to electronic home monitoring (EHM). EHM is simply house arrest. The defendant must get the ankle bracelet set up before he with the county before he is released.

Release on Nominal Bail : I have never seen this provision used in Delaware County or Chester County. If the defendant is released on nominal bail he must post a nominal amount such as $1.00 and have a designated person act as a surety for him.

What Factors Will the Court Examine When Deciding What Type and How Much Bail to Set?

When deciding what type or what amount of bail to set for a particular defendant, the court will look to Pennsylvania Rule of Criminal Procedure 523 Release Criteria The following is an abbreviated version of this rule. The court will consider the following criteria relating to the defendant when deciding how much and what type of bail to set:

  1. the likelihood of conviction and the seriousness of the crime;
  2. employment status, employment history and financial situation;
  3. family support and ties;
  4. length of residence in the community and past residence history;
  5. character, reputation, mental condition and any drug or alcohol history;
  6. whether the defendant has appeared to court in the past;
  7. any record of flight or escape from arrest or prosecution;
  8. criminal history;
  9. whether the defendant gave false identification;
  10. any other factors the court deems appropriate.

The following is a sample argument that I would give when arguing bail before a district judge on a client facing felony Aggravated Assault charges in Delaware County:

Your Honor, may it please the court, my client John Doe is 34 years old, he is gainfully employed as a tow truck driver at ABC towing and has been for 12 years. He is divorced and has two daughters ages 10 and 4 that he supports. He has made timely child support payments for the past 3 years since his divorce. If he is incarcerated for any length of time he stands to be discharged by his current employer. He currently owns a home in Upper Darby and has resided in Delaware County his entire life. My client has never missed a court appearance in his prior cases and poses no flight risk to the court or Commonwealth. He has retained my services for the Court of Common Pleas level. Today, his mother, father and sister are present in the courtroom to support him. His family does have, $500 to post. I would ask that the Court set bail in the amount of $5000/10%. Thank you.

Bail Procedures: When Will I Have an Opportunity to Argue Bail?

Preliminary Arraignment : When you are arrested and the police take you to the district court to be arraigned, the district judge will initially set your bail at this stage of the process. It is extremely important to contact an attorney prior to your arrest. I have been able to secure the release of many defendants for serious crimes by arranging their surrender with police ahead of time. I will typically call the police officer and arrange for my client's surrender in exchange for the officer to recommend unsecured or low bail. I will then ask the police officer if I can call the judge or write a letter asking for unsecured or low bail that my client can afford.

Preliminary Hearing : If you were arrested without the chance to speak to a lawyer and are incarcerated, your attorney will have the chance to argue bail at the preliminary hearing. The district judge can modify the bail he or she set at the preliminary arraignment. It is very important to take advantage of this opportunity to be released at the preliminary hearing. From my experience, you can have success with a good attorney arguing on your behalf at the preliminary hearing.

Bail Motion/Court of Common Pleas : If your attorney was unable to secure your release at the preliminary hearing, you will have another opportunity to argue bail before the Court of Common Pleas. You or your attorney can file a bail motion at anytime in the Court of Common Pleas and the motion must be heard within 72 hours. However, once you file a bail motion, the district judge can no longer decide your bail. This is why I prefer to argue bail before the district judge first, then as a last resort go to the Court of Common Pleas. That way my client will get "two bites at the apple."

How Do I Post Bail to Get Out of Jail?

1. Post the Bail Money by Cash: The easiest way to get out of jail is post the bail money. If your case is still at the district court level you can typically post with the district judge's office or the Clerk of Courts (in Delaware County the Office of Judicial Support). Once you post the bail the clerk will fax a release order to the prison to release the defendant. If a third party posts the bail on behalf of a defendant the county will typically keep 40% of the bail money. The rest will be returned to you when the case is over.

2. Use a Bail Bondsman: You can choose to hire a bail bondsman when you cannot afford to post the bail. A licensed bail bondsman posts their bond with the court. Their bond is as good as cash. In return you pay the bail bondsman a non-refundable fee. For example, if your bail is set at $25,000, 10% and your Mom wants to post the $2500 but she can't afford it. She can go through a licensed bail bondsman and post, let's say $1000.00 and get her son out. The downside to using bail bondsman is that it is usually more expensive than posting cash bail because the whole fee is non-refundable. In the above example, your Mom would lose $1000.00. If she could afford the $2500 cash bail the county would keep a third, therefore, she would only lose $833.00.

3. Post Property, Securities or Bearer Bonds - Pennsylvania Rules of Criminal Procedure 528 allows a defendant or his family member to post real estate or bonds as collateral for bail. I have rarely seen this option used in my practice.

What are the Standard Rules or Conditions When Placed on Bail?

In Pennsylvania, when you are placed on bail you must sign a bail bond. Every bail bond in Pennsylvania will have the following standard conditions or rules:

  1. you must appear at all times directed until the end of the case;
  2. you must obey all additional orders the judge imposes upon you;
  3. you must give written notice of any change of address within 48 hours;
  4. you will not intimidate any witnesses;
  5. you will refrain from any criminal activity.

A judge can also impose any additional conditions that he or she feels is suitable on a cash bail case. For example, if the defendant had a heroin addiction, a judge could impose $25,000/10% bail conditioned on the release of the defendant to an in-patient drug rehab facility.

Contact Us

Contact Jason Antoine, Pennsylvania Criminal Defense Attorney and former Assistant District Attorney at (610) 299-0295 if you or a loved one is incarcerated on bail pending trial. Our office may be able to make a bail motion immediately and have you or a loved one released from prison. The sooner I get involved the sooner I may be able to help you get out and fight your case from the street.