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My Loved One Was Arrested and Taken to Jail – Should I Bail Him Out?

Finding out that a family member was taken into custody can be stressful. Your instinct may be to help your loved one, to get him out of jail and back to a place of safety. But before you pay good money to bail him out, you should be aware that there are good reasons to leave him in.

First, though, a quick primer on how bail works. Bail comes into play after a person is arrested, taken into custody, and the prosecutor agrees to file criminal charges against him. The person can be held in jail until his case resolves or he — or someone on his behalf — can pay a sum of money to the Court in exchange for his release. This money is the bail, and it serves as an incentive for the person to keep coming back to court as his case proceeds. You see, once the person’s case is over —whether it’s because he is acquitted, is convicted, or is fortunate enough to have his case dismissed — the bail money will be returned to the person who paid it.[i]

Why Would I Leave Him in Jail?

Because bail is expensive, and authorities may decline to file charges

Bail is not cheap.[ii] For instance, bailing out a person accused of misdemeanor domestic violence costs $10,000. And the bail amount for felony domestic violence is $50,000. Even with the help of a reputable bail bondsman, a bail bond (which is typically 10% of the bail amount) can still strain one’s finances.

And even if you can come up with the money, there is no guarantee that prosecutors will file charges. This is critical because if the prosecutor declines to file charges, then the person will be released from jail. If you paid the full amount of the person’s bail to the Court, then the money will be returned to you. However, if you purchased a bail bond — which is paid to a bondsman instead of to the Court — you will not get your money back. This is because bail bonds are non-refundable.

Once a person is arrested, prosecutors have between two and four days to decide whether to file charges against him.[iii] A few days in jail may be a harrowing experience for your loved one. But if finances are a concern, it may be more prudent to allow your loved to remain in custody until the prosecutor’s filing deadline.

Because even if charges are filed, they may be changed later

A person may be arrested on suspicion of a felony, but ultimately charged with only a misdemeanor. This can occur, for instance, if police were exceptionally zealous at the time of the arrest. Or if a prudent prosecutor determines that the evidence indicates that a crime occurred, but that the crime did not rise to the level of a felony.

And if that happens, then the initial bail amount will be reduced.

Using the domestic violence example above, if a person is arrested for felony domestic violence, then his bail will be set at $50,000 (assuming that there are no aggravating circumstances that would justify a higher bail amount). With a bail bond, though, the person could be bailed out immediately for the cost of $5,000 (which is 10% percent of the bail amount).

However, say that the person declined to bail out immediately and instead chose to endure a couple of days in jail to see what charges, if any, the prosecutor might file. If the prosecutor ultimately decides to file only misdemeanor domestic violence charges, then the person’s bail will be set at only $10,000, and the cost of his bail bond will fall to $1,000, a significant reduction.

To be fair, there is always the risk that a person’s bail amount may be increased after his arrest. In the context of a domestic violence arrest, this can occur, for instance, if the alleged victim later presents injuries that were not immediately apparent, or if law enforcement later discovers a person’s prior arrests or convictions.

Because your lawyer can persuade the Court to reduce the bail amount or even release you outright

Just because charges are filed doesn’t necessarily mean that the bail amount is set in stone. Judges often have the ability to allow an arrestee to be released without having to pay any bail. This is known as being released on one’s own recognizance (or an “O.R.” release).[iv]

Courts will consider several factors before agreeing to release a person on his own recognizance. These factors include: the person’s likelihood of appearing at future court dates, whether the person poses a threat to public safety, the seriousness of the alleged offense, and the person’s prior criminal history (if any).[v]  The fewer red flags that a person raises in each of these categories, the higher likelihood he has of being released on his own recognizance.

However, a Judge’s ability to release a person from custody without having to pay bail does not even come into play until charges are filed. Put another way, a person must be willing to wait at least a couple of days in jail before he can even consider receiving an O.R. release.

Having a criminal defense attorney on one’s side can maximize a person’s chances of receiving an O.R. release.

The attorney can take an individual’s unique circumstances and then succinctly and persuasively articulate why those circumstances indicate that the person is not a flight risk, why he will not endanger the public if released, and why he will continue to come to court if allowed to remain at liberty.[vi]

Because, for some people, certain lessons must be learned the hard way

Even if you can afford to pay your loved one’s bail or to retain an attorney on his behalf, should you? Police arrested your loved one because they believed that he committed a crime. Even if, ultimately, the evidence is not enough to secure a conviction, your loved one still willingly placed himself in a situation where getting arrested was a possibility.

Think about that. Every day, how many activities do you engage in that entail the risk of getting arrested? If your answer is “zero,” then it’s probably because you try to think through the consequences of your actions. Foresight is a useful skill; however, it is one that takes some longer to cultivate than others.

For the uninitiated, jail is a swirl of new emotions and experiences: Loss of personal autonomy. Frustration over missing personal and professional obligations. Uncertainty of what comes next. Shame for where one now finds himself. Embarrassment over being grouped with other alleged misfits. A pervasive feeling of powerlessness. Imagine all of this being felt simultaneously, all while being housed in communal and cramped living quarters. And even though this environment can be temporary — anywhere from two to four days — the impact of such distress can be long-lasting.

If your loved one has yet to learn that actions have consequences, well, there are few better teachers of this lesson than a night or two in jail.

But bailing him out deprives him of this valuable life lesson and ensures that the mindset and beliefs that led him to jail in the first place will persist.[vii]

Conclusion

So, should you bail him out? Because that decision is so deeply personal — it involves your finances as well as balancing what your loved one must learn and what he can endure — ultimately, it is only you who can make that call.

But help is available. Michael J. Ocampo, Attorney at Law, is a skilled attorney and former prosecutor. Michael can help you talk through your thoughts during this acutely distressing time and advise of you your options. If you’d like to speak with Michael about you or your loved one’s unique situation, feel free to contact him at (714) 451-6834 to schedule a no-charge, initial consultation.

[i] For instance, see Penal Code §1297 (if the person receives a conviction, he can apply his bail money toward his fines) and Penal Code §1303 (bail money to be returned 15 days after dismissal of a person’s case).

[ii] https://www.occourts.org/directory/criminal/felonybailsched2019.pdf

[iii] Penal Code §825(a).

[iv] Penal Code §§1270(a), 1270.1.

[v] Penal Code §§1270(a), 1270.1(c), 1275. For certain crimes, such as egregious felonies and crimes involving domestic violence, the Court must also hear from the prosecution before granting an O.R. release. Penal Code §1270.1.

[vi] An attorney can also ensure that any applicable procedural requirements are satisfied. For instance, see Penal Code §1270.1(b).

[vii] Note: If, however, your loved one’s misconduct is due to an underlying mental health disorder that would be exacerbated in a custodial environment, then his release from custody becomes a priority.

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