Criminal defense attorneys and judges often use the terms “bail” and “bond” interchangeably, but, technically, there is a difference. Bail is the process whereby an arrested person is released from jail while he awaits the trial of his case; bond is the property posted — that is, deposited with the court — to satisfy the requirements of the bail. Once bail is set and a bond is posted, an accused person is freed throughout the court process unless he violates the conditions of his release and is reincarcerated.
The idea of bail as a financial incentive for a person charged with a crime to return to court came to the American colonies from England, and the Eighth Amendment of the U.S. Constitution guarantees that “excessive bail shall not be required.”
Here in Harrisonburg, Virginia, when someone is arrested, he is taken to the Rockingham County Jail where a magistrate will determine whether he should be released. During these initial bail hearings the magistrate must consider whether the accused is likely to return to court and whether he will be a danger to the community if released. After making those determinations, the magistrate decides whether release is appropriate and how much money, if any, should be required to be posted as a bond.
If the magistrate sets bail, conditions of bail always include appearing in court when required and “being of good behavior”; that is, avoiding arrest for any other charges. The magistrate may set other special conditions of release, and those conditions often include remaining in the state of Virginia or reporting to a pretrial services officer at the Rockingham County Court Services Unit. Conditions can also include a curfew, electronic monitoring, or keeping away from a particular person or a particular place.
For some more serious criminal charges listed in the Virginia Code there is a presumption that there should be no bail and the magistrate will not authorize release. In that case, or if the person is not financially able to pay the amount set by the magistrate, the law requires that the accused be taken before a judge the next day for the Rockingham County General District Court judge to make his own determination regarding bail.
In less serious cases such as DUI or possession of marijuana where the accused has no criminal record and is likely to appear at trial, he is released on an “unsecured” bond; that is, he does not have to post any money and is released on his promise to pay the bond or return to jail if he violates the conditions of bond by reoffending or by failing to appear. Sometimes this is called being “released on your own recognizance.”
When the bail set is a “secured” bond, then the amount of money set by the magistrate or the judge must be posted with the court before the individual is released from jail. The bond can be posted in cash or by executing a lien on real estate property. If the accused fails to appear or otherwise violated the conditions of bail, the property can be forfeited to the government. On the other hand, when the case is concluded the money posted is returned to the person who posted it or the lien is released.
When the amount of the bail set by the magistrate or the judge is too expensive for individuals or their families, they can hire a bondsman who will pay the bond on the defendant’s behalf. Usually the bondsman’s fee is 10% of the bail amount which he keeps even when the bond is returned to him at the end of the case.
Virginia is one of only a handful of states that does not have a “bail schedule” which determines the amount of monetary bail amount appropriate for each criminal offense. Instead, judges take a variety of factors into account before setting the bail amount, including the specific criminal charges, the person’s criminal history, and his ties to the Harrisonburg community. There is anecdotal evidence that Harrisonburg may be slowly moving in the direction of an emerging national trend in which judges and magistrates are less likely to require large cash bonds that unfairly impact the poor who cannot afford to pay, thus remaining in jail and unable to work or care for their families while they await trial.
Given the devastating effect of being held in jail awaiting trial for months if bail is denied, you need an experienced criminal defense lawyer to represent you at the earliest stages of your case to obtain the best possible bail amount and conditions during your bail hearing. If you or a loved one are arrested in Harrisonburg or in neighboring jurisdictions such as Shenandoah County or Augusta County, contact Cook Attorneys as soon as possible after the arrest so that we can represent you at your bond hearing.
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