Bail is one of the most consequential parts of the early criminal process. It determines whether you remain in custody while your case moves through the courts or whether you can return to your job, your family, and your daily life as your attorney prepares your defense. Understanding how bail is set, what factors judges consider, and what options exist for release can make a meaningful difference in the months ahead.
What Bail Is and Why It Exists
Bail is a financial arrangement designed to ensure that a person accused of a crime returns to court for future hearings. When bail is posted, the defendant is released from custody pending the resolution of the case. If the defendant fails to appear, the bail is forfeited. The system is meant to balance two competing interests — the public’s interest in ensuring defendants appear in court, and the defendant’s right to be presumed innocent and to participate fully in their own defense.
Not every arrest results in a bail amount being set. For minor offenses, defendants may be released on a citation. For very serious offenses, courts may deny bail entirely under specific circumstances allowed by California law.
How Bail Amounts Are Determined
Superior Court judges in every California county are required to prepare and annually revise a uniform countywide bail schedule that lists presumptive bail amounts for misdemeanor and felony offenses. In San Diego County, the bail schedule is published by the Superior Court and applies to the initial booking phase before a defendant’s first court appearance.
After arraignment, the bail amount becomes subject to the judge’s discretion. California Penal Code § 1275 directs the court to consider four factors when setting bail: the protection of the public, the seriousness of the offense charged, the defendant’s prior criminal history, and the probability that the defendant will appear at future hearings. Public safety is the primary consideration.
For more serious cases involving drug charges, assault and battery, or violent offenses, bail amounts can quickly reach tens of thousands of dollars or more. For lower-level offenses such as misdemeanor theft, bail amounts are typically far lower.
Ways to Secure Release
There are several methods by which a defendant can be released from custody before trial.
Cash bail. The defendant or a family member posts the full amount of bail in cash with the court. If the defendant appears at all required hearings, the cash is returned at the conclusion of the case, regardless of outcome. If the defendant fails to appear, the cash is forfeited.
Bail bonds. Because most defendants cannot afford to post the full amount in cash, many turn to bail bond companies. The defendant or a family member pays the bail bond company a nonrefundable premium, typically 10% of the total bail amount, and the bond company posts the remainder with the court. Once paid, that 10% premium is not returned, even if the case is dismissed.
Property bond. A defendant may post real property with equity at least double the bail amount. Property bonds are uncommon and require court approval.
Own recognizance (OR) release. A defendant released on their own recognizance is freed without posting any money, based on a written promise to appear at future hearings. OR release is most commonly granted for nonviolent misdemeanors and certain lower-level felonies, particularly when the defendant has strong community ties and no significant flight risk.
Ability to Pay and Bail Reform
In recent years, California has moved toward considering a defendant’s ability to pay when setting bail. Courts are now generally required to consider whether the defendant can actually afford the bail amount before imposing it. If a defendant cannot pay, the court must consider less restrictive alternatives such as supervised release or OR release, and may only require an unaffordable bail amount upon clear and convincing evidence that no other condition will reasonably ensure public safety or appearance in court.
This shift has had significant practical effects. A skilled attorney can now argue more effectively for reduced bail or alternative conditions, particularly for clients with limited financial resources.
What Happens at a Bail Hearing
At a bail hearing, the judge considers the offense, the defendant’s background, the prosecutor’s arguments for higher bail, and the defense attorney’s arguments for reduction or release. Strong factors that support a lower bail or OR release include stable employment, longstanding ties to the community, family responsibilities, no prior criminal record, and a clean history of appearing at past court dates.
A San Diego criminal defense lawyer can present these factors persuasively, gather supporting documents such as proof of employment and letters from family members, and challenge the prosecutor’s request for higher bail. Without representation, defendants often pay far more than necessary — or remain in custody when they could have been released.
What Happens if You Skip Bail
Failing to appear at a required court hearing has serious consequences. The court will issue a bench warrant for your arrest, your bail will be forfeited, you may face additional criminal charges for failure to appear, and any future bail in the case may be set substantially higher. If a bail bond company posted bail on your behalf, they may pursue you and any cosigners aggressively to recover the forfeited amount.
Get Help With a Bail Hearing
Bail decisions made in the first 48 hours after arrest can have lasting effects on your case. The sooner you involve an attorney, the sooner they can advocate for your release and begin preparing your defense. Attorney Elliott Kanter has more than 45 years of experience representing clients across California, including in Oceanside and throughout San Diego County. If you or a loved one has been arrested and is facing a bail hearing, contact The Law Office of Elliott Kanter APC immediately for a free consultation.