What is bail?
When people are arrested and charged with a crime, they’re often taken into custody and held in jail. Then, early on in their cases, most defendants are offered bail. At this stage, they are presumed to be innocent.
Bail is an agreement between the court and a person accused of a crime, which allows the person to be released from jail while waiting for their court proceedings.
How does bail work in Ohio?
The terms of the bail are usually set by a judge at the beginning of the case, and can be changed by a judge later.
Sometimes, the judge allows people to secure their release simply by agreeing to return to court and following rules set by the court. In other cases, they must pay cash to be released from jail. If they come to their court hearings, they get the money back. If not, they lose the money and the court keeps it.
The assurance that a person gives the court — whether it’s their word, cash, or property — is called a bond. Bonds can be paid by the defendant or someone else on their behalf.
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system.
What are the types of bonds?
Judges decide which type of bond is set for each defendant. Sometimes they will rely on an interview or assessment of the person done by a court employee.
A signed promise where a defendant agrees to return to court for future hearings and follow any rules the court sets, such as wearing a GPS ankle monitor or checking in with the court weekly. If a person does not show up for court or violates the judges’ rules, the person can be arrested and put in jail or the judge can set additional conditions or a new bond. Some personal bonds have a cash value that could also be owed if the defendant violates the bond agreement.
These bonds are also known as “own recognizance” or “personal recognizance” bonds.
A payment deposited with the court’s clerk in exchange for release from jail while criminal charges are pending. If a person does not show up for court or violates rules set by the judge, they can be arrested, or the judge can set additional conditions or a new bond. The bond paid previously can be kept by the court.
A type of cash bond that requires payment of 10% of the total amount of the bail. If the bail is $10,000, then $1,000 would be deposited with the court’s clerk.
Payment is made to a bondsperson or insurer, who deposits a portion of the bail with the court’s clerk in exchange for the person’s release. The bondsperson charges additional fees for posting the bond. If the person doesn’t show up or violates the conditions the court sets, the court can make the insurer or the bondsperson pay the full amount. The insurer will typically then try to collect the debt.
A person can use real estate, usually a house, as collateral for release from jail. The court places a lien on the property and can take the collateral if a person fails to appear in court or violates bond conditions.
What happens to a bond at the end of the case?
The main part of a criminal case ends when a person is either found guilty and sentenced, found not guilty, or the court dismisses the case.
After that, as long as the court hasn’t ordered the bond revoked or forfeited, the clerk can release the bond to the person or company that deposited it.
The entire amount of a full cash bond can be returned if a person is found not guilty, or if the case is dismissed. The court can take out administrative fees and court costs and fines associated with the case if the person who deposited the bond gives permission.
For a 10% cash bond, the court returns 90% of the amount paid.
If a bond was posted with property, the court can release the lien.
Do judges have to set bail?
Judges almost always set bail in Ohio.
Ohio law sets a process for judges to deny bail. The judge must hold a hearing and listen to evidence from prosecutors and defense attorneys.
To deny bail, a judge has to find that evidence exists that the person committed the crime and is a danger to a victim, a witness or the wider community. They also must find that no conditions, such as GPS monitoring, can reasonably assure the safety of witnesses, victims or the public. This is known as being “remanded without bail.”
What are judges supposed to consider when setting bail?
When deciding on bail, judges are required to consider each case individually. They can weigh a person’s previous criminal history, the seriousness of the charge they face, and any risks to a victim or community safety. The type and amount of bail set should be related to the risk of the defendant failing to show up for court.
The U.S. Constitution forbids the use of excessive bail.
In 2022, the Ohio Supreme Court ruled that public safety should not be a consideration when setting bail and that judges should set bail in an amount “reasonably calculated” to make sure a person shows up for court.
After that decision, Ohio lawmakers voted to place a constitutional amendment on the statewide ballot. The amendment — which voters overwhelmingly approved in November 2022 — requires judges to consider public safety when setting bail. The amendment also took power away from the Ohio Supreme Court to set rules on bail amounts or conditions and gave it to state lawmakers.
What other conditions can a judge set for release from jail?
Judges can require that a person check in with the court or be monitored by electronic means. These are known as “pretrial release conditions.”
During the pretrial period, known as “court supervised release,” court supervision staff, similar to probation officers, monitor a person who has been released and report on whether the bail conditions are being met. They can also provide referrals for community services for people who are facing criminal charges, including assessments for drug dependency, mental health services, or stable housing assistance.
Why is cash bail controversial?
The use of cash bail has come under increasing scrutiny in Ohio and across the country. People accused of crimes are “innocent until proven guilty,” but with the current bail system, those who can’t afford to pay for their freedom often remain in jail while their cases move through the court system.
Ohio doesn’t collect statewide data on bail. The Ohio ACLU studied bail in several places, including Cuyahoga County, and found it can worsen racial disparities.
Ohio justice system officials have wrestled with those realities and made recommendations to improve the system statewide. Proposed legislation to eliminate or reduce the use of cash bail have stalled.
The Marshall Project’s David Eads and Anna Flagg contributed graphics editing additional reporting for this piece.
Cuyahoga County bail reform
Judges still have the final say about bail in each case — the state’s constitution requires them to consider public safety — but bail still varies significantly based on the judge making the decision.
The paths to bail reform elsewhere have included statewide legislation, civil rights lawsuits and systems change on the local level. In Cleveland, the most recent push for reform started around 2016. Since then, justice system officials have implemented some changes that have reduced the overall use of cash bail but have not eliminated it.