What You Should Know About Bail

  1. What is bail?

    In adult court, bail is money that some criminal defendants have to deposit to guarantee that they will return to court if released from jail while their cases are pending. The amount of money that the person arrested must pay as bail is determined by the judge and depends on the type of crime committed, whether the person arrested has ever been in trouble with the law before and whether he might move away or hide to avoid going to court. The judge sets the amount, and while the trial is in progress, the money is deposited with the clerk of the court or with a bail bond company. The money is returned after the case is fi nished. However, if the defendant is convicted, a percentage of the money will be deducted.

    If the person charged with breaking the law can’t pay the money for bail that the judge sets and can’t fi nd someone to put up a bond for him or her, then he or she must stay in jail until the next court date.

    There is no bail in Family Court. Kids charged with a juvenile delinquency case are either held in detention or allowed to go home with their parents without paying any money.

  2. In what ways can I post bail?

    Bail may be posted as “cash,” or through a bond. The law requires that the judge give at least two ways of posting bail. Most commonly the court will direct that bail be posted in cash or as an insurance company bail bond. Often the bond amount will be higher than the cash alternative, because courts are aware that bond companies generally accept well less than 100% of the face value of the bond as security. Once cash bail or a bond is posted, the court has the authority to order a hearing (a “surety hearing”), to determine whether the bail money came from legal sources.

  3. What is a bond?

    A bond is like insurance that another person pays on behalf of the person charged with a crime. A bond is a legal contract that requires someone to pay money if a defendant fails to return to court. It is guaranteed by the assets of the person who posted it, such as real estate, savings, or valuable personal property.

  4. What are the different types of bonds?

    • Insurance Company bond: A bond that is posted by a bail bond company that is established by an agreement with the company and the company promises that the person will return to court.
    • “Surety” bond: A bond in which another person – the “obligor” – undertakes to ensure that a defendant returns to court, upon penalty of losing the bail amount if the defendant fails to do so. There are three types of surety bonds: secured, in which the person posts the full amount of the bond; partially secured, in which the person posts a percentage of the full amount; and unsecured, in which the person promises to pay the amount but does not post any cash.
    • “Appearance bond: A bond in which the defendant is the obligor. There are three types of appearance bonds: secured, in which the person posts the full amount of the bond; partially secured, in which the person posts a percentage of the full amount; and unsecured, in which the person promises to pay the amount but does not post any cash.

  5. How can a person post cash bail?

    If both the person posting bail and the defendant are in court, cash bail can be posted in the courthouse, and the defendant can be released before being transferred to jail. This most commonly occurs at the initial arraignment. If you plan to post bail for a defendant following an arraignment or other court appearance, you should tell a court offi cer, so that the defendant will be held in the building for release. Bail posted in the courthouse must be paid in cash; the courthouse cashiers do not accept any form of check. There is an experimental program in Manhattan that allows payment by credit card if the judge allows it. Bail can also be paid at most City jails, although defendants are usually released fastest if the bail is paid at the facility where they are being held. City jails will accept certain kinds of certifi ed or government checks as well as cash, but there are restrictions on the amount and type. As an alternative the defendant can post bail from his or her own prison account. You can fi nd rules about posting bail and about sending money to the prisoner account on the N.Y.C. Department of Correction’s website. Alternatively, you can obtain information about posting bail, as well as information on locating defendants and jails, retrieving prisoners’ property, visiting hours and rules, and travel directions, by calling the Department of Correction, at 718-546-0700. The addresses of New York City jails are listed below.

    • Brooklyn House of Detention
      275 Atlantic Avenue
      Brooklyn, N.Y. 11201
    • Manhattan House of Detention
      125 White Street
      New York, N.Y. 10013
    • Vernon C. Bain Center
      1 Halleck St.
      Bronx, NY 10474
    • Riker’s Island
      11-11 Hazen Street
      East Elmhurst, N.Y. 11370

  6. How can I post a bail bond?

    If you are posting a bond, you will need to find a bail bondsman. They can be located through the yellow pages, and often have offi ces near the courthouse. Bail bondsmen must licensed by New York State; make sure you deal with one who has a valid license.

  7. How do I get my bail money back?

    If the defendant has made court appearances as required, cash bail should be returned at the end of the case. When the case is over, the judge should issue an order for the return of bail (“exonerating” the bail). The New York City Department of Finance will issue a check to the person who deposited the bail. If the case has ended in a conviction, 3 percent of the bail will be kept by the government. The Finance Department claims that it does this within 2 weeks of its receipt of the court’s order. In practice, it can take up to 6 or 7 weeks for bail to be returned after a case is over. If your bail has not been returned after 6 weeks, you can contact the Department of Finance at 212-487-3046 or 212-487-3050. You should have your bail receipt available when you call, so that you can provided the information they will need to fi nd the case. The Department of Finance’s website contains other useful information about getting a bail refund, assigning bail funds, changing the address on the bail receipt, and more.

  8. What if my bail was forfeited?

    If a defendant does not come to court when required to do so, the judge may order that bail be “forfeited,” or kept by the City. There is a procedure, called “remission of forfeiture,” which allows a person who posted bail to apply for it to be returned if it has been forfeited. Some people hire a lawyer to do this, but you can do it on your own if you cannot afford a lawyer. Keep in mind that there is a strict deadline for a “remission of forfeiture” application: you must apply within one year of the date that the court ordered the bail forfeited. If the bail was forfeited in Supreme Court (a felony case), the application must be made to the court that issued the forfeiture order. If it happened in Criminal Court (a misdemeanor case), the application is made to a Supreme Court judge in that county. An application for “remission of bail” must be made in writing. It must give a good reason why the defendant did not come to court. These include being hospitalized, being in jail somewhere else, and not being told when to come to court. If you are proceeding without a lawyer, you should ask the court clerk for instructions about how to proceed.

(May 23, 2012)