Bail: How does it work?

Before Criminal Law and Policy Blog delves into the nuance of bail and the topics we have introduced, there are some basics to cover.  First, what is bail?  The short answer is that bail is any form of release, from own recognizance release to money bail.  Bond or commercial surety bail is that release guaranteed by a bail bond company.  Be sure to read Bail: What are we even talking about? for a more thorough explanation of this term of art and how it differs from the term bond.  This post will explain the process of administering bail.  Once an individual is arrested, when and how can he or she be released on bail?

What follows is an explanation of the different stages at which bail is “assessed” after a person is arrested.  I use quotations because the entity or individual doing the “assessing” doesn’t necessarily use discretion, and may merely apply a formula.  Essentially, a person, from here on out we will refer to him or her as the defendant, can be released prior to trial at these different points in the post-arrest process.  A better understanding of this process will help us gain insight into the sources of pretrial population pressure.

  1. Cite and Release

If a defendant is arrested for a misdemeanor or violation of a city or county ordinance, California Penal Code section 853.6 mandates the arresting officer release the defendant after he or she signs a citation promising to appear, unless specific conditions are present.  There are particular exceptions to the presumption of citation and release for domestic violence arrests, stalking, or intentional violations of protective orders.  Citation and release can mean that the defendant never spends time in jail; it is an important mechanism to limit the custodial pretrial population.

The conditions under which a defendant is ineligible for release under section 853.6 are numerous and include the following: if the defendant cannot provide identification; if there is a reasonable likelihood the offenses will continue; or if there is reason to believe the defendant will fail to appear in court.  If one of the conditions is present, the arresting officer can then take the defendant to county jail and bail will be assessed at a later time.  When this occurs, the arresting officer must indicate in writing which condition of non-release applied to the defendant’s situation (see section 853.6(i) for a comprehensive list).

Although section 853.6 is mandatory, the arresting officer is given complete discretion over where and how the defendant is “booked” (853.6(g)).  This is important because where a defendant is booked can be the difference between him or her ever spending time in jail.  If the citation and release process occurs at the location of arrest, without any formal booking,[1] the defendant would be given instructions to appear at the arresting agency for booking prior to the date they are instructed to appear in court and may never see the inside of a jail prior to sentencing.  If the arresting officer transports the defendant to the arresting agency or county jail for booking, the defendant would be in custody for the duration of the booking process.

If the defendant is arrested based on a misdemeanor arrest warrant, even if the warrant is for a crime that is otherwise eligible for citation and release, section 853.6 permits the officer to arrest the defendant and take him or her into custody.  State law is merely a baseline; counties and cities can also institute their own policies for citation and release as long as they are not more restrictive than state law.  For example, the San Jose Police Department Duty Manual specifies that an individual shall be issued a citation and released if the bail amount for their active warrant(s) totals $5,000 or less (Page 311, section L3113).  That is, under the California statute, an officer is not required to cite and release a defendant arrested on a warrant; however, the SJPD does cite and release defendants whose bail is under the $5,000 amount.

The use of citation and release does not prevent the court from assigning monetary bail or conditions of release at a later time.  According to section 853.6(d), a magistrate may set bail according to Penal Code section 1275 prior to the date upon which a defendant promised to appear in court.  Bail can also be set during that first appearance, based on the same standards as discussed in section 5 below.  If the magistrate sets money bail at any time and the defendant cannot pay, he or she will be returned to custody.

  1. Posting Bail with the Arresting Agency

If a defendant is not issued a citation and released, and they are not taken immediately to county jail, but instead taken to the police station, they may post money bail with the arresting agency.  California Penal Code section 1295 mandates the release of anyone in custody who has deposited bail.  If there is a warrant, the warrant will state the amount of bail as previously decided by the magistrate issuing the warrant.  Otherwise, bail could only be determined based on the county bail schedule because a magistrate has not yet determined bail according to Penal Code section 1275.  Officers do not have the discretion to adjust the amount of bail based on the bail schedule.  If a defendant wants to challenge the amount of bail as set in the bail schedule, they will not have an opportunity to do so until their first appearance before a magistrate, as explained below in section 5.

  1. Cite and Release at County Jail

A defendant may also be cited and released at county jail.  This would occur after a defendant goes through the booking process in county jail.  Although I have come across some information regarding the process and procedure for the Main Jail complex in Santa Clara County, including a policy of citation and release for defendants where the scheduled bail amount is $5,000 or less, it is unclear if these policies differ from those governing the arresting officer (see Bail and Release Report for 2-18, page 11).

Figures posted by the Santa Clara County Sheriff indicate that the Main Jail complex books approximately 65,000 persons annually, but that a majority of these individuals is either cited and released or posts money bail.  The Main Jail complex has the capacity to support 1,593 defendants at any given time.  This suggests that citation and release after booking into jail is a prevalent form of release.

Based on these numbers, it would appear that the policies for jail citation and release must differ in some way from citation and release by the arresting officer, or that jail citation and release could be a result of the arresting officer opting to take the defendant to booking at that facility as allowed by section 853.6(g), as opposed to allowing the defendant to book sometime prior to their initial court appearance as discussed in section 1.

  1. Posting Money Bail

If the defendant has been booked into county jail, but not cited and released, they may post money bail or bond as a means of securing release from custody prior to arraignment.  Once again, the amount of bail would be based on the county bail schedule.  Once the individual has been booked into custody in Santa Clara County, friends and family of the defendant can view the amount of bail using the inmate locator.

Most defendants use commercial bail companies to post bond.  According to insiders, this is the fastest way to secure release.  Commercial bail bonds companies have a financial incentive to be the defendant’s first option for release, before a judge can decide to release a defendant on another form of bail such as release on one’s own recognizance or supervised release.

Own recognizance (O.R.) release is similar to citation and release in that a defendant does not need to deposit money or post bond.  The defendant must promise to appear in court and comply with any terms set by the magistrate, the most common being not to commit any crimes.  Supervised release is a form of bail where the defendant agrees to specific terms of release and is monitored in order to ensure compliance with these terms.  Although the defendant is not required to post money bail while on supervised O.R., there may be costs associated with the terms of their release, such as paying for drug testing.

  1. Setting Bail at Arraignment

Arraignment occurs at the defendant’s first appearance before the court. If the defendant is in custody, the arraignment must take place within 48 hours of the arrest.  During arraignment, the defendant will be appointed counsel and the magistrate will set bail.  This is the first time money bail can deviate from the amount set in the bail schedule, unless an officer has previously submitted a declaration under section 1269c.  This section allows an officer to request bail to exceed the bail schedule amount in cases where the defendant is (1) arrested for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order and (2) the officer has a reasonable belief that the amount listed in the bail schedule is insufficient to ensure the victim’s protection or the defendant’s appearance in court.  Once again, although the officer can request increased bail in these cases, the bail amount would not deviate from the bail schedule absent the magistrate’s authorization.

Arraignment is also the point at which a magistrate can release the defendant on either O.R. or supervised release.  In Santa Clara County, there is a magistrate on duty to assess a defendant’s eligibility for O.R. release prior to arraignment, after the defendant has been booked into county jail.  Unless the defendant is cited and released, the bail schedule is controlling until a magistrate is able to review the defendant’s eligibility for different forms of release.

California Penal Code section 1275 provides that the judge or magistrate must consider “protection of the public, seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing on the case” when setting, reducing, or denying bail.  Additionally, section 1275 provides that for serious or violent felonies, the court shall make a finding of unusual circumstances on the record in order to reduce bail below the amount established by the county bail schedule.  If the defendant is accused solely of misdemeanor crimes, he or she is entitled to a release on his or her own recognizance absent a public safety risk or risk that the defendant will not appear in court.

  1. Increasing or Reducing the Amount of Bail

After bail is set at arraignment, the court can adjust bail if either the defendant or the District Attorney moves to increase or decrease the amount of bail.  If the court increases the amount of bail and the defendant is out of custody because they had previously posted money bail or commercial surety bond, the defendant will be required to post the difference between the original amount and the increased amount or be taken into custody.

As evidenced by this post, the topic of bail is complicated.  It becomes even more complicated when it comes time to distinguish between law, policies, and practice.  While this post is meant to offer a basic understanding of the different stages of the bail process as regulated by California statute, the process could vary county-by-county and department-by-department.  In my next post, I will be revisiting the different stages of the bail process with a focus on the misdemeanor defendant in Santa Clara County.  Stay tuned.


[1] The term booking refers to a number of processes.  Here, booking refers to information gathering through fingerprinting and photographing the defendant, as well as running the defendant’s information through databases.  Booking can also refer to the process that occurs when an individual is processed into county jail, but it is important to note that booking and being placed in custody in county jail are not mutually exclusive.