What is the Difference Between Bond and Bail?

Bond and Bail Gavel, handcuffs and money.

If you have been arrested and charged with a crime, you may be able to negotiate your release from jail by posting bail or obtaining a bond. While the terms “bail” and “bond” are often used interchangeably, even in Michigan statutes, there are differences between the two. If you are facing criminal charges, it is important that you understand these differences and how they will impact you.

Bail refers to an amount of money paid in exchange for releasing someone from custody. Bail is not a punishment per se, but is a way of ensuring the defendant will appear at scheduled court hearings and abide by certain conditions if they are released before the criminal case is over.

Bond refers to a contract or a promise to pay money or provide some other type of security in exchange for an agreement to do something. The promise is void if certain conditions are not met. In the case of a criminal charge, a defendant can hire a bail bond company to post bail in exchange for paying up to 10% of the bail amount as a nonrefundable fee. If the defendant fails to appear at a scheduled court date, the bond company forfeits the entire bail amount and the defendant becomes personally liable to the company, which can seek payment from the defendant and is empowered to pursue a defendant who has fled the court’s jurisdiction.

Whether you obtain pre-trial release by posting bail or obtaining a bond, failure to appear at a scheduled court hearing or otherwise violating the terms of the pre-trial release will result in forfeiture of the bail money and additional penalties.

What to Expect at a Bail Hearing

After someone has been arrested, the judge will schedule a hearing to set bail and determine other conditions the defendant must meet if they are released from jail.

At the bail hearing, the judge will explain the charges, ask questions to be sure the defendant understands their rights, ask whether the defendant is represented by an attorney, and set a bail amount.

When setting bail, the judge will consider the risk that the defendant will engage in additional criminal activity, whether the defendant is a flight risk, and the likelihood that the defendant will try to intimidate witnesses who may be called to testify against the defendant. The judge will also consider the defendant’s prior criminal history and their ties to the community.

If the judge decides to release the defendant, they will explain the conditions of release and may require that the defendant post bail. A defendant can pay the bail amount by posting cash or a surety bond.

In cases involving the most serious crimes, such as allegations of murder, rape, kidnapping, and drug trafficking, the judge will hear evidence from the defendant and the prosecutor to determine whether bail is appropriate and to set an amount for bail.

Potential Outcomes of a Bail Hearing

There are generally three possible outcomes to a bail hearing:

  • Release on Your Own Recognizance / Personal Bond. If the defendant is released on their own recognizance, they are released from jail in exchange for signing an agreement promising to return to court and abide by other terms set by the judge. The defendant agrees that they will be liable for criminal and civil penalties for failing to appear in court.
  • Bail with Terms of Release. The judge may allow the defendant to be released by posting bail in an amount set by the court. Bail can be paid directly, or the defendant can obtain a surety bond through a bond company.
  • Denial of Bail. In some cases, especially those involving the most serious offenses, the judge will decide that the defendant should not be released from jail and will deny bail. The defendant will remain in custody until and throughout the trial.

According to Michigan Court Rules, the judge should impose the least restrictive conditions that are still sufficient to ensure that the defendant will appear at trial and other court hearings.

Once the defendant has satisfied their appearance requirements, the bail money will be returned or be used to pay court costs and other fees. In the case of a bond, the fee paid to the bondsman is non-refundable.

Working with a Bail Company

In many cases, the bail amount set by the judge is more than the defendant can afford. When this happens, the defendant may turn to a bail bond company that will post bail in exchange for a fee that is up to 10% of the total bail amount.

The defendant will sign an agreement, known as a surety bond, agreeing to be liable for the full amount of the bail if the defendant fails to appear in court or otherwise violates the terms of pre-trial release. The bond company will post the bail, and the defendant will be released.

Criminal Defense Attorney Robert Elmen Legal Helps You Understand Your Options and Mount Your Defense

I understand that being charged with a crime is a scary and unsettling experience and that getting out of jail can help restore some sense of normalcy. I also know that understanding your options and when and how to post bail can be confusing. I am here to answer your questions, guide you through the process, and be your advocate. I will explain the charges against you and will represent you at the bail hearing. I will also represent you throughout your criminal case, and, if necessary, at trial.

Whenever I take on a new case, I perform an independent investigation to identify weaknesses in the prosecution’s case. Then we will work together to try to have the case against you dismissed, negotiate a favorable resolution, or take your case to trial to defend you in court.

If you have been charged with a crime in or around Ann Arbor, Michigan, Elmen Legal can help. Learn more about Elmen Legal and the criminal defense services I offer, read reviews from other people I’ve helped, then contact me today to schedule a confidential consultation to discuss your situation and how I can help.

Elmen Legal proudly represents people in Ann Arbor, Saline, Pittsfield Township, Chelsea, or Ypsilanti, in Washtenaw, Wayne, Monroe, Lenawee, Hillsdale, Jackson, Ingham, Livingston, and Oakland Counties.