Well that depends. It depends on whether you know the mayor, the sheriff, someone on the city council or even if you know someone willing to drop a few hundred bucks to bail you out of jail.
But seriously, let’s say you are arrested for some non-violent, not-terribly serious offense (although obviously it was serious enough to get you arrested). What happens next?
As soon as reasonably possible, you will be sent before a judge or magistrate (like a judge with a robe and a seat on the bench but only designated to do certain types of hearings). Usually you won’t have a lawyer present on your behalf at this point.
Someone from law enforcement (likely a detective investigating your case) will be there along with the prosecutor. They will explain to the court what they believe you did and recommend you either be released or detained. The court will then make a determination based on the severity and nature of the alleged crime whether you should be allowed to go home.
Here’s what the court is looking for:
1. Whether you were on release for some other pending charge when the offense occurred;
2. The nature and circumstances of the offense charged;
3. The history and characteristics of the accused, including character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history of drug or alcohol abuse, criminal history, gang membership, and record concerning appearance at court proceedings; and
4. The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
In addition, you may be subjected to drug and/or alcohol testing through the court’s ‘pre-trial services’ office. This is more likely if the arrest involved drugs or alcohol. The results may help determine what conditions you are subject to if you are released (i.e., periodic drug and alcohol testing).
So what can happen?
Depending on what the court finds based on the above considerations there are essentially three general options (but a lot of potential combinations):
A. Unsecured bond/’Release on own recognizance‘
If you’re lucky, you’ll be released on an unsecured bond which means that you can go home and the court will take your word that you’ll appear for your next court date. If you fail to appear, you will owe the court a certain sum of money. If you appear, you don’t pay anything.
B. Secured Bond
If you’re less lucky, the court will release you on a secured bond which means that someone else has agreed to pay the court if you fail to appear at your next court date or the court has put a lien on some property of yours.
If you’re even less lucky, the court will set bail which must be paid up front in cash in order for you to be released.
‘How much will my bail be?’ you might ask. Well unfortunately that also depends. The 8th Amendment to the U.S. Constitution states that “excessive bail” shall not be required. Pretty ambiguous. The U.S. Supreme Court has only interpreted “excessive bail” as an amount higher than that reasonably designed to ensure the presence of the accused at trial. Again, pretty ambiguous.
If the court sets bail, you can either pay the bail in cash, have someone else pay it or hire a bail bondsman who will post 10% of the bail (a ‘bail bond premium’) and get you out. The bondsman is then on the hook for the rest of the bail if you fail to show up for your next court appearance. Unfortunately this means that whoever hired the bail bondsman for you is responsible for paying the bondsman that entire amount if you fail to show. Additionally a warrant for your arrest will be issued. In short, don’t be tempted to skip on your bail – it won’t end well.
D. Pre-Trial Detention
If you’re truly unlucky, the court will order you to remain in detention until your next court hearing. Despite movies and TV shows, this doesn’t happen in most cases unless the crime is of a violent nature, you violated the terms of your release for some other offense, or you were under the influence of some form of dangerous drug (i.e., PCP). In general, there are certain crimes for which the court will presume you should be detained absent some extenuating evidence to the contrary:
1. An act of violence;
2. An offense for which the maximum sentence is life imprisonment or death;
3. A specified drug offense involving a Schedule I or II controlled substance, if (i) the maximum term of imprisonment is 10 years or more and the accused was previously convicted of a like offense, or (ii) the accused was previously convicted as a “drug kingpin” (yes – this is a thing);
4. Violations of certain statutes relating to firearms and providing mandatory minimum sentences;
5. Any felony, if the accused has been convicted of two or more offenses;
6. Any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction;
7. A sexual assault offense if the accused has previously been convicted of one of those offenses and the judicial officer finds probable cause to believe that the accused committed the currently charged offense;
8. A child pornography offense;
9. Gang-related or terrorist acts;
10. Certain driving while intoxicated offenses if the accused has been convicted of similar offenses three times in the past five years;
11. A second or subsequent violation of a protective order; or
12. Assault and battery against a family or household member; or
13. Threatening violence to intimidate a witness.
Basically the system takes the view that these are pretty nasty offenses and that releasing you to the public would pose a substantial risk to yourself or others.
OK, so now you’re either heading home with a lot of thoughts running through your head about getting a lawyer and telling your significant other about your recent misadventure with the legal system OR you’re sitting in a jail cell with even more thoughts running through your head. What next?
GET A LAWYER. If you’re being held in detention, it is important to remember not to talk to ANYBODY about your case other than your lawyer.
TO BE CONTINUED . . .