How Do You Bail Out of Jail?

Chicago Criminal Lawyers at Mitchell S. Sexner & Associates LLC Explain Posting Bail

bail out of jailWhat if you (or someone you care about) have been arrested for an alleged criminal offense and have been taken to the police station for processing and charging? Whether you are permitted to leave the police station, whether you are held overnight for a bail hearing before a Judge, and whether you will be allowed a release upon bail (pending a trial or other disposition of the charges) depends upon a number of factors, all set out in the Illinois Code of Criminal Procedure, Chapter 725, Illinois Compiled Statutes, Section 5/110-1 et. seq.

Release From the Police Station

You may be released directly from the police station after you have been processed when charged with any Traffic Code violation, Wildlife Code violation, other Ordinance Violation, and most misdemeanor offenses. You may also be released in any case where you have been arrested upon a previously issued warrant, after posting the required monetary funds to secure release at the station. (Peace officers are designated individuals authorized to accept bail security, or to release an arrestee on bail, as are Clerks of the Court). Misdemeanor offenses not authorized for station release involve offenses against family or household members as defined in the Domestic Violence statutes, such as Domestic Battery, or a Violation of an Order of Protection. As in all felony arrests, these arrests require you to be brought before a Judge for a bail hearing. At that hearing, a Judge will determine what amount, if any, is to be set, and what conditions above and beyond the statutory conditions may be required.

Personal Recognizance Bond (I Bond)

Section 110-2 states that you may be released from custody "upon your own recognizance" if the court is "of the opinion" that you will 1) show up to court as required before or after a conviction, 2) that you do not pose a danger to the safety of the community or to other individuals, and 3) that you will comply with all of the conditions of bail, including giving your current address to the Clerk of the Court on the bond slip, as well as immediately notifying the Clerk's office of any changes. In Illinois, a recognizance bond is commonly referred to as an "I Bond" or "signature bond". You will not be required to post any money or other security, as your signature on the bond slip is your security.

Violation of I Bond

With a personal recognizance bond, although no money is actually posted, there will still be a designated monetary amount on the bond slip, which becomes relevant only if you fail to appear in court as required. Upon your failure to appear, if no reasonable explanation is provided to the court explaining your absence, the court may enter an order "forfeiting" your bond. If you then fail to appear within 30 days, or at the next scheduled court date if it is after 30 days, the court may then enter a judgment of bond forfeiture, for the full dollar amount designated on your bond slip. For example, if you were released on a felony retail theft case upon a $10,000.00 I Bond, a judgment of $10,000.00 would be entered against you if you failed to appear, and it could be subject to collection by the Clerk's office. Section 110-2 does caution however, that the rules of bail are to be "liberally construed" to allow for criminal contempt of court proceedings in the event of a violation of bail bond as the preferred method of enforcing bail violations rather than a monetary loss.

Almost Everyone Entitled to a Reasonable Bail Amount

Of course, not everyone is entitled to be released upon their own recognizance. Some defendants and some particular charges require the posting of security to reasonably assure compliance with the conditions of bail, and some cases may require the total denial of any bail, period. For a judge to require bail security, Section 110-2 requires that the judge first find that no other conditions may reasonably assure that the accused will appear in court as required, that the defendant does not pose a risk of harm to the community or other individuals, and that the defendant will comply with the rules and conditions of bail set forth by statute or by order of court.

Section 110-4 provides that all persons are "bailable" before a conviction except these offenses where the proof is evident, or the presumption great that the defendant is guilty of the offense:

  • Capitol Offenses (punishable by death);
  • Offenses for which a sentence of life imprisonment may be imposed;
  • Felonies with mandatory prison without the possibility of probation, etc. where, after a hearing, the court determines that the release of the accused would pose a real and present threat to others;
  • Unlawful Use of a Weapon under section 24-1(a)(4), involving carrying a firearm on one's person or in an automobile at, in, on, or within 1000 feet of a school, where after a hearing, the court finds the real and present threat, and the necessity of a no bail order to prevent carrying out that threat;
  • Stalking/Aggravated Stalking, where after a hearing, the court rules that the defendant is a real and present threat to the alleged victim and the denial of bail is necessary to prevent "fulfillment of that threat."
  • Making/Attempting to make a Terrorist Threat, again after a court finds that there is a real and present threat, and to prevent the threat from coming to fruition, then denial of bail is allowed and necessary.

In the absence of any of these statutory bars to pretrial release, the court must set a reasonable bail to allow for the defendant to remain free pending the outcome of his case (other than the restrictions placed upon him as conditions of bail). It is the burden of the State to prove any alleged necessity to deny bail.

What a Judge Must Consider When Setting Bail

Section 110-5 has a very long laundry list of factors a court may consider when determining what amount of bail, if any, to set. Among these factors are:

  • the nature and circumstances of the offense,
  • whether there was the use or threat of force involved,
  • whether corruption of public officials was involved,
  • whether the threat of harm to public officials, judges, prosecutors, jurors, witnesses, senior citizens or children was involved,
  • whether the use or possession of a firearm, machine gun, bomb or other serious weaponry was involved,
  • whether it was gang-related,
  • whether it was a "hate crime",
  • the victim's condition/concern about future contact with defendant if released,
  • the likelihood greater charges will be filed later,
  • the likelihood of a conviction and the possible punishment,
  • the weight of the evidence,
  • defendant's possible motive to flee the jurisdiction,
  • defendant's ties to the community, employment, character, mental condition, financial resources, past criminal history, prior use of alias names or dates of birth,
  • If a foreign national, whether there is an extradition treaty in place with his or her home country.

There are no guidelines as to what factors may weigh more heavily than others, as a bail hearing is truly a case-by-case proposition. There are approximately 600 judges in Cook County, Illinois alone and it has often been said by criminal practitioners that one could get a different bail amount, with different conditions, from each and every one of them.

The Presumption of Innocence

By this time, you are probably wondering about what happened to "The Presumption of Innocence," when a judge is making such a hasty decision about the likelihood of a conviction when considering bail. You may be asking, how does a judge deny someone bail, or set a very high bail, based upon mere allegations? The answer, of course, is that without the Presumption of Innocence, and the Constitutional Right under the 8th Amendment to the U.S. Constitution prohibiting excessive or prohibitive bail, there would be no bail at all, and anyone charged criminally would be held in custody pending the outcome. To give effect to the presumption, Illinois law specifically states that the amount of bail, if any, shall be:

  • sufficient to assure (not guarantee) compliance with the conditions of bail;
  • not oppressive;
  • considerate of the financial ability of the accused

In drug cases, the court shall consider the "street value" of the illicit drugs, based upon evidence, or a proffer of evidence, presented by the State at the bail hearing. Whatever amount or conditions are initially ordered, those amounts or conditions may be modified at any stage of the proceedings upon the court's own motion, or upon due notice by either the State or the Defendant, following a hearing.

The Posting of Bail Money or Security

Once bail has been set, the next step is for the accused, or someone acting on his behalf, to post the required security, either with the Clerk of the Court, or directly at the jail. The person for whom the bail is set must execute the bond slip in order to be released, and post an amount that is 10 percent of the bail ordered. The bond slip that follows is known as a "D Bond". If someone other than the accused is posting the bail as a "surety," an extra space is provided on the form for that person to execute their signature, and for the accused to acknowledge someone other than himself posted the security. The bond slip contains admonishments that tell all concerned that the bail money may be forfeited upon failure to appear as required, or that the proceeds may be used to satisfy attorney fees, court fines, costs or fees, restitution to a victim, etc. The Clerk's office will retain 10 percent of the amount of security posted as their processing fee, although in counties of 3,000,000 or more (Cook County), the Clerk may only retain up to $100.00. In Class X felony drug cases, in Terrorist Threat cases, and a few other circumstances, a judge may order that 100 percent of the bail be posted as security. The result will be the issuance of what is known as a "C Bond", and 100 percent of the proceeds on those bonds belong to the accused, or his surety, except to the extent that money may be taken out for attorney fees, fines, court costs and fees, restitution, etc.

Who Can Post Bail?

As for individuals other than an accused that are able to post security, the only restriction is in Section 110-13. This prohibits any Attorney at Law practicing in Illinois, or any official authorized to admit another to bail (judge or peace officer) or to accept bail (clerk or peace officer), from providing any portion of funds or security to obtain one's release, or to act as a surety in any way. Other than that, anyone may post security for a defendant to secure his release pending the outcome of a case, whether family or friend. As for the types of security that may be posted, cash is always accepted. If cash is not desirable, one can post the amount in the form of a Cashier's Check or Certified Check. If no liquid funds are available, one can also post the value of the bail in the form of stocks, bonds, or real estate, subject to certain procedural rules. If posting real estate, the property must be located in Illinois, and there must be unencumbered equity in the property that meets or exceeds the amount of bail. Obviously, the posting of monetary security is far better than trying to negotiate stocks, bonds, or real estate, as the only procedure you need to follow is properly counting up the money.

Experienced Criminal Attorneys

The Chicago criminal attorneys at Mitchell S. Sexner & Associates LLC are hard-working, knowledgeable, and aggressive. We provide quality legal services to our clients, and are ready to do the same for you. If you find yourself facing any sort of criminal charge, you should call us right away at (800) 996-4824, and schedule an in-office, face-to-face, absolutely free consultation, in the confidential surroundings of our Arlington Heights office, Chicago office, or at another location near you. Call today.

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