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The Bail Process in Virginia

When people hear the maxim “Innocent until proven guilty,” it generally makes them think that person will only be incarcerated after their guilt has been proven beyond a reasonable doubt. The sad reality is that this is simply not the case. In the United States, people who are arrested on suspicion of engaging in criminal activity are sometimes held in custody for months (and even years) during the pendency of their criminal case when (1) they are unable to afford bail; or (2) when the judge refuses to set a bail amount.


How Does Bail Work?

When a person is arrested for a minor offense – such as DUI or possession of marijuana – the court will normally release them on their own recognizance or on an unsecured bond. If you are confused about the unsecured bond process, here is how it works: when a judge orders a person released on an unsecured bond of $1,500, this means that the person will be released without having to pay the $1,500. But if they fail to show up for their next court date, then when they are taken into custody, they will not be released again until they pay that $1,500 bond.

For more serious offenses, such as murderrape, certain drug offenses, certain firearm offenses, and certain offenses involving street gangs, a court may keep the defendant in custody until the end of trial. Normally, courts will justify their refusal to release the defendant if they (1) believe the defendant may skip town and not show up to their next court date; or (2) because they believe the defendant may pose a danger to the public. But in most cases, pretrial detainees generally have a right to bail.

So, when the system claims that people are “innocent until proven guilty,” it really can be crushing for a person who is charged with a crime to be forced to pay money even though there is almost no evidence of the person’s guilt. Unfortunately, this is just one of the many costs of criminal charges.

How Do Judges Determine Bail Amount?

Unlike other states, Virginia does not have a bail schedule. A bail schedule is an outline of the required bail amount for each specific criminal offense. Instead, judges generally will set bail based on the severity of the charges, the defendant’s criminal history, the facts of the case, and other considerations. When bail is denied or is set at an exorbitantly high rate, your Fairfax criminal defense attorney can challenge the bail at a bail hearing. At the bail hearing, the judge may reduce bail. In more than a few cases I have tried, I have been able to convince a judge who originally refused to set bail at all to actually allow my client to be released on an unsecured bond where they were not even required to put up any money.

Again, although we are told that we are “innocent until proven guilty,” when it comes to bail hearings, a judge is required to assume that all the allegations against the defendant are true. This requirement certainly runs counter to the aforementioned maxim.

What Is Wrong with the Current Bail Process?

There are a number of problems with the current bail system in Virginia, but before I get into those problems, I have some good news: When you hire a good criminal defense attorney, a judge will likely set a reasonable bail for you at your bail hearing. Having an attorney generally means that your attorney be able to appear for you at some hearings, and this will help ease any worries the judge may have concerning whether or not you will show up to your next scheduled court date.

Now, as for the problems with the bail system. The main problem with the current bail system is that it is coercive. Many times, people who cannot afford bail plead guilty just so they can get out of jail or receive a short sentence and go back home. In other words, defendants are offered deals to be released, but only if they plead guilty to crimes which, many times, they simply did not commit.

Likewise, most people don’t have money to post the full bail amount. When they do, however, they can post the full amount and when they show up for court, they get the money back. This is true regardless of whether they win or lose the case. But, like I said, bail can be prohibitively costly, and that is why most people utilize the services of bail bondsmen who will require the defendant to put up a nonrefundable fee of 10% of the bail amount. The bondsmen will then cover the remaining 90%. The problem is that after the case is over, the defendant does not get any of their money back.

In juvenile cases, bail is not a right. But juvenile detention hearings generally result in the child being released so long as they abide by the conditions set by the court during the pendency of their case. While juvenile and adult pretrial detention are similar in many respects, juveniles cannot be required to post bail as a condition of their release.

How a Fairfax Criminal Defense Attorney Can Help

When a person has a warrant out for their arrest, the bail amount is typically established beforehand. As such, hiring an attorney before being arrested is important, as doing so allows your attorney to contact a bondsman who will be present when you turn yourself in. The bondsman will then immediately begin the paperwork to have you released and you should be out of custody in less than 3-4 hours. Hiring an attorney will also likely help you save on the total bond amount.

If you or a loved one is being held in jail pending trial, contact a Fairfax criminal defense attorney who can help. At the Law Offices of Randall Sousa, we are always happy to provide information on the bail process or answer questions you may have about your criminal case. Call us today for a free consultation. 571-354-6164