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What is Bail or a Bond in a Criminal Case?

Bail is defined as the funds that a criminal defendant might be ordered by the court to pay before he or she is released from custody (jail) while awaiting trial. In some jurisdictions, instead of bail, the synonymous term bond is used. The purpose of bail is to make sure that a criminal defendant will return and appear at future trial proceedings and not be a risk of flight or disappearance. Bail is not meant to serve as a fine or any type of punishment.

What Are the Origins of Criminal Bail?

Bail is a guaranteed right in all non-capital (non-death penalty) criminal cases. This protection derives from a judiciary enactment dating back to 1789. In instances in which a criminal defendant is charged with a capital offense and the death penalty is a possible sanction, then bail is a discretionary privilege. Bail, in those instances, is based on the seriousness of the offense.

The United States Constitution's Eighth Amendment addresses bail and mandates that there should not be any requirement for excessive bail. The jurisprudence of the U.S. Supreme Court has upheld holding a criminal defendant in jail without bail, while that defendant awaits criminal trial. Accordingly, there is no absolute right to bail in criminal cases in the United States.

How Is Criminal Bail or a Criminal Bond Set?

Bail is usually set during the criminal defendant's very first appearance before the court. In some jurisdictions, a judge determines the bail amount and sets the applicable conditions regarding it. In other jurisdictions, however, other court officers or officials are charged with this duty. Further still, in jurisdictions such as Illinois, there is a separate special court dedicated to the bond process for felonies, called bond court.

One of three outcomes typically occurs at a bail hearing in most jurisdictions where a judge presides:

  • The criminal defendant is released without any bail requirements or upon the condition of an unsecured appearance bond.
  • The criminal defendant is denied bail by the court.
  • The court sets terms and conditions of bail, which include the bail amount and special conditions, if any, for release.

Is There Such a Thing as Bail or Bond in Civil Cases?

It is true that bail usually involves criminal trials and defendants. Yet, bail can also be imposed in civil cases in very unusual circumstances. In a civil proceeding context, bail may be used to secure debt payment (in a direct or indirect basis). Alternatively, civil bail may be used to secure and ensure the performance of a particular duty or service, as well. These rare instances may include the use of bail to preclude a party from flight on the eve of litigation or to make sure that assets are not concealed, hidden, secreted, or disposed of improperly in other contexts. In cases such as this, bail would typically be determined based on the likely damages the plaintiff would be awarded in the proceeding by the court or jury. The civil bond can even be used as a type of deposit that is paid toward the ultimate judgment amount.