Definitions2

This information is presented as a public
service by the "Lawyer Referral &
Information Service" of the Maine State Bar
Association.

The purpose of bail from the point of view of the defendant is to get
them out of jail so they can get back to their family, home, and job.
For the court, bail serves a few more purposes. To be sure, bail allows
for the release of a person from jail. But it also is designed to ensure
the person appears in court when told to, it is supposed to protect the
integrity of the judicial system, and it is supposed to discourage the
person from committing any new crimes.

Bail is typically set on a case-by-case basis by either a bail
commissioner or a judge, and includes both a monetary assessment and
conditions. The amount will vary according to the severity of the crime
and other circumstances. The conditions of a bail bond may be as
simple as a promise by the defendant to behave and come back to
court as scheduled. This is called personal recognizance bail. If the
circumstances indicate that the person needs more incentive to behave
or more supervision to ensure compliance with the rules while they are
out in public awaiting trial, the bail can be set to require a cash
payment held by the court. This cash bail could be forfeited if the
person commits any crimes while on bail or fails to show up at their
next court date. In some cases, when the cash amount is fairly high, the
court will accept surety as a way of securing release on bail. The surety
typically takes the form of some real estate that is pledged by the
defendant (or often their family members) as a way of enforcing the
promise that they will abide by the conditions or risk losing the
property.

Bail can also include any number of restrictive conditions. It is common
for people charged with DUI who are released on bail to be prohibited
from the use or possession of alcohol or illegal drugs. People charged
with crimes like assault are usually prohibited from having contact with
the alleged victim.

One surprising aspect of many bail bonds is that they can permit the
police to search the person, their car, or their home without the need
for probable cause that protects the rest of the population from such
invasions of privacy. This means that a person who has bail conditions
permitting such a search can be identified by law enforcement as being
on bail and then can be searched without a warrant or even without
any clear cause. All of this happens while the person is still innocent in
the eyes of the law.

And of course, a violation of bail conditions can result in re-arrest. If a
person violates their bail conditions and is rearrested it can be far
more difficult to ensure their release from jail a second time. There is
always the risk that the person who violates their bail conditions will
need to sit in jail until their case is resolved, often many weeks down
the road.

This article is a reprint of an article published in the "Village Soup"
in association with the writers of the "Herald Gazette", a local
newspaper and general interest publication and website from the
state of Maine.