Ways You Can be Released from Custody
3. Released on your Own Recognizance (OR)
4. Charges Not Filed or Dropped
Bailing vs. Bonding
Example: a person is arrested and has their bail set at $10,000.
-To post someone’s BAIL means you would go directly to the jail and post the bail amount in full. In this example it would be $10,000. You do not need a bondsman to post bail.
– The full bail amount will be returned when the case is resolved, which can take months or even years. So just remember, you might not see that money for a long time. If the arrestee does not show up for their court dates, you may forfeit the entire amount.
-To post someone’s BOND means you would locate a bondsman and pay them a percentage of the bail amount, usually 10%.
– In this example, 10% of $10,000 = $1,000. So you would pay the bondsman a $1,000 bond.
– If the person has a private attorney, the bondsman may offer you a lower rate, usually 8%. In this example, 8% of $10,000= $800.
-Bonds are non-refundable. Unlike posting bail, you will not receive that money back, even if the case is resolved.
-You need to have a co-signer for the bond. That means the co-signer will be responsible for the full bail amount if the defendant does not show up for their court dates. The co-signer must have an ID, and usually a check stub to show proof of employment to the bondsman. The bondsman will take the cosigner’s fingerprints and picture. Defendants are often responsible for checking in with the bondsman after each court appearance. Bondsmen will track down co-signers for money if the defendant does not appear for their court date(s).
–If the case has still not been resolved a year after arrest, the court requires the defendant to put up bail again.
-If a person is on probation or parole when they are arrested, they will have a hold placed on them, and you will not be able to bail or bond them out. ** see section on Probation under Long Term Incarceration**
-People who have an Immigration Customs Enforcement (ICE) hold are also not able to be bailed or bonded. In 2012, ICE deported 409,849 people, more than any year before. California has had over 82,531 deportations as a result of the Department of Homeland Security’s program Secure Communities (S-Comm), more than any other state.
Released on your Own Recognizance (OR)
-The attorney can argue for the defendant to be released on OR if they can establish that you live locally, have ties to the community, and/or give a reason why you need to be out of custody (if you have a job, go to school, have children, primary caretaker for somebody, etc.) Regardless, you can still be denied OR, especially if you are charged with felonies.
-If you are released on OR you don’t have to pay bail or bond to be released from custody. Sometimes people are given a “stay away” order as a condition of being released on OR. (People have however been given stay away orders at other stages of their case after having been released for sometime and not as a condition of OR.) This is essentially a restraining order, usually from the place where the arrest or alleged incident occurred.
-In order to determine whether you may be released on OR, a court employee (Pre-Trial Services) will interview people from your support group and ask them questions to establish that they know the defendant well, that you are not a flight-risk, and that you will show up to your court dates.
-In preparing for a possible arrest, have a local address memorized, and a plan for what you will tell Pre-Trial Services. They will ask questions like: Where do you live? What’s the address? How long have you lived here? Where do you work? How long have you worked there?
-Be ready to not only answer these questions, but have your support people provide the same answers when they are questioned. This interview usually takes place at your arraignment.
Why you Should Wait Until After Arraignment to Bail/Bond
-Bail amounts are usually lowered significantly after the arraignment because the DA may only file some of the charges. It has been a common tactic of police to hold people on high charges with high bails, despite the fact that they know the original charges won’t stick.
-Sometimes at the arraignment, the DA decides to not file charges and people are released after being held for a few days. If you have already been bonded out, you will never get that money back, even if some charges were dropped or never filed.
-If there is a chance that a person can be released on OR, they should wait until the arraignment so they can make that argument. You can always bail/bond afterwards if OR is not granted.
-Generally speaking, when an arrest first occurs everything seems more dire than it actually is. Police are known to overcharge people to keep them in on higher bails. Charges are often lowered or dropped after arraignment. It’s worth it to stay strong in there a few days until after arraignment because it could save you and/or your loved ones and comrades thousands of dollars.
If you are Released with No Charges Filed
-The Alameda County DA will often release people with no charges filed, but still have the option to file them at a later date. In that event an arrest warrant will be issued for you to be taken into custody.
-The charges may have changed since you were arrested.
-The DA has up to a year to re-file misdemeanor charges, and 3+ years for felony charges, depending on what the charges are. To check if the DA has re-filed charges against you after you were released, you or a friend can call the DA’s office and they will check for you.
-This is a tactic that the has been used in Oakland to discourage and scare people into ceasing their protest activity. The DA’s office will warn arrestees that if they are arrested again then the office will refile charges on the previous arrest. This is a trickier and more subtle form of repression. In recent history, however, the DA has not re-filed very many charges stemming from old arrests.