Bail is the money a defendant pays as a guarantee that he or she will show up in court at a later date. For most serious crimes a judge or magistrate sets bail during an arraignment, or in federal court at a detention hearing.
The Constitution of the United States directs that "excessive bail shall not be required." Amend. art. 8.
For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes, the amount of bail is set by the judge at the suspect's first court appearance. The purpose of bail is to guarantee the scheduled appearance of the defendant in court. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail by non-appearance since the bail is equivalent to the fine.
Bail bond forfeiture results when conditions of bail aren't met or court appearances are missed by an accused individual. Once a person charged with a crime misses the court date, a bench warrant is issued for their arrest. The court also states a forfeiture date on which the bail amount must be paid if the charged person isn't found.
The forfeiture of a bond or the setting aside of such a forfeiture are usually discretionary decisions within the realm of the court. In deciding how much, if any, of the bond to forfeit, when defendant fails to appear before the court, the court may consider such factors as:
- the willfulness of the defendant’s violation of bail conditions;
- the surety’s participation in locating and apprehending the defendant;
- the costs, inconvenience, and prejudice suffered by the state as a result of the violation;
- any intangible costs;
- the public’s interest in ensuring a defendant’s appearance; and
- any mitigating factors.