Tennessee Code Annotated § 40-11-104 and the statutes that follow govern the rights of a defendant in relation to bail. See also, Tennessee Constitution, Article 1, Section 15. Keep in mind that this blog entry is not comprehensive in nature. It is only a general summary of the law as of the date the blog entry is posted. Consultation with an experienced lawyer is highly recommended before dealing with a bail bond issue. The lawyers at Oberman & Rice are available day or night at 865-249-7200.
Bail may be made in a variety of forms. The most common forms include a cash deposit or a surety bond payable to the court clerk. Another type is real property (land) lien signed to the court clerk (a property lawyer is usually involved and this takes much longer – days). Sometimes the court will accept a signature bond or allow the defendant to be released on his or her own recognizance (a promise to appear). Each of these methods is intended to ensure that a person accused of a crime will appear in court when he or she is required to do so.
If the defendant appears for all scheduled court dates, the bail money will be returned, sometimes less a small administrative fee. If the defendant does not appear for his or her scheduled court date, the court may keep the full bail amount and issue a warrant for the defendant’s arrest.
Because the defendant is incarcerated at the time bail is set, family or friends often must arrange for the bail to be posted. The use of bondsmen to raise the money necessary to post bail is discussed below. Although an attorney may already be hired and involved in the case when bail is set, an attorney is prohibited from being financially involved in a client’s bail, such as by paying a bondsman, signing a bond, or becoming a surety.
How is Bail Determined?
A judge will typically set the bail amount. However, many jails have standard bail schedules for common types of crimes in order to release people from jail faster. Generally, an incarcerated defendant is entitled to have his or her bail set “without unnecessary delay,” so bail is generally set within a few hours. However, over holidays for instance, it is possible for a defendant to be incarcerated for several days before the bail amount is set. An experienced attorney may be able to help speed up the process and/or reduce the amount of bail.
The U.S. Constitution’s Eighth Amendment and Tennessee’s Constitution, Article 1, Section 16 prohibit excessive bail. Bail is not intended to raise money for the government, nor is it meant to punish the defendant for his or her alleged crimes. Bail is primarily intended to allow the accused to remain free until convicted, and it should cost no more than is reasonably necessary to keep a suspect in the jurisdiction until the case is complete. Another purpose of bail, though, is to protect other citizens (society) from the defendant. In these cases, the amount of bail may be set very high and in some cases, not at all.
Specifically, in certain circumstances a judge is prohibited from setting bail for a defendant who is considered a continuing danger to the community. Monitoring devices using GPS and/or alcohol or drug monitors or other restrictions may be ordered as conditions of bail to avoid the perceived or actual danger to the community, but it is possible for the defendant to be incarcerated without bond if the danger to the community cannot be eliminated.
It is also possible for a suspect to be released from jail without having to pay any monetary bail. A judge will consider the seriousness of the crime and the suspect’s criminal history, family relationships, and community standing when determining the bail amount. If a judge believes that a suspect will not be a threat to the community or a flight risk, the judge may release the suspect on his or her personal recognizance. The defendant will have to sign a document promising to make all scheduled court appearances. Of course, other conditions, such as supervision by a government official, may also be imposed.
What is a Bail Bond?
Bail bonds are a means of posting bail if a defendant cannot afford or chooses not to pay the entire amount. A bail bondsman will post bail on a person’s behalf in exchange for a percentage of the amount of the bail as payment (typically around 10%). Therefore, if bail is set at $1,000, the defendant will need to pay the bail bondsman a nonrefundable fee of $100. In addition, the bonding company usually charges an administrative fee of $50.00 – $100.00 per charge. The bail bondsman guarantees to the court that the defendant will appear for all scheduled court appearances. If the defendant does not appear, the bondman is required to pay the full bail amount to the court clerk.
Conditions of Bail
When people are bailed out of jail, they are commonly subject to conditions of release. This means that they must adhere to certain conditions set forth by a judge. If they fail to comply with these conditions, bail may be revoked and the offender will be returned to jail. Some conditions, such as the condition that the defendant must obey all laws, are general and apply to all cases.
Other conditions can reflect the crime for which the suspect was arrested. For example, a person arrested for domestic violence may be ordered to stay away from the complainant, a defendant in shoplifting cases may be prohibited from frequenting the store, or a person arrested for DUI may be required to prove he or she is not drinking by using an alcohol-monitoring device. Such restrictions may be burdensome and/or expensive. The lawyers at Oberman & Rice may be able to reduce the types and extent of such restrictions.
If you have been arrested, it is important to obtain legal representation immediately in order to ensure your rights are being protected. At Oberman & Rice, we believe “Your Future is Our Present Concern®.” We are committed to representing our clients with unparalleled attention and communication – 24 hours per day, 7 days per week.