Everything You Need to Know About Oklahoma’s Bail / Bond System
When you are arrested, you either remain in jail until your case is resolved or have the option to “make bail.” In the latter case, a judge sets your bail and you can pay to get out of jail. This process for getting out of jail has recently come under fire, because it allows the rich to buy their way out of jail and leaves the poor to sit in custody until their trial. We will go over the details of the bond system, how bond is set, and why our current system is a problem for low income individuals.
What is the difference between “bail” and “bond?”
Bail and bond can be used interchangeably most of the time. Bail is when you put the money up to be released from jail on your own, whereas “bond” is when you have someone else put that money up for you, such as a bail bondsman.
How is bond set?
When you are arrested, the arresting officer writes a full police report along with a probable cause (PC) affidavit. Probable cause is the standard an officer must show in order to keep you in custody; it means the officer must have believed you probably committed a crime. This PC affidavit summarizes the events that happened showing the probable cause for the arrest, and is sent to the district attorney (DA) as well as to the judge setting bond.
Each county within Oklahoma handles bond a little differently. In some counties, the judge informally reads the PC affidavit in their chambers and determines what the bond should be, and then tells the DA and defense attorney on the case. If one of the attorneys has an issue with the bond, they will argue to the judge why it should be different.
Other larger counties within Oklahoma have a formal bond docket. This is where every arrest from the day prior is presented to the judge. A representative from the DA’s office explains why they believe the bond should be a certain amount. If there is a defense attorney for the case*, they will also present their argument.
* I say “if” there is a defense attorney because many people have not yet hired a defense attorney at this stage in the process, and public defenders are not appointed to cases at this point either.
It’s important to note that judges are not arbitrarily deciding the amount to set for bond. Many judges have what they call a bond schedule, which lists bond amounts for common cases. For example, a DUI typically has a set bond amount that the judge will automatically assign on each DUI case. This doesn’t mean the number will never change. As previously mentioned, attorneys will argue as to what the amount should be, and they do this while utilizing the bond factors laid out in the Brill case.
The Bond Factors
In Brill v. Gurich, 1998 OK CR 49 ( OK. Crim. App. 1998), Oklahoma established a set of factors that the judge must consider when determining bond. These factors are:
- The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
- The weight of the evidence against the person;
- The history and characteristics of the person, including:
- The person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
- Whether, at the time of the current offense or arrest, the person was on probation, parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law; and
- The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
While all of these factors are evaluated, the factor that is most heavily considered by the court is the risk to other members of the community if the defendant were to be released. If you are charged with stealing from Walmart, you aren’t a major risk to the community. Conversely, if you have been stalking and assaulting the same individual repeatedly, you would appear to be a risk to that individual and your bond would be set accordingly.
Some of these factors can seem strange, such as the consideration of family and community ties. This is meant to analyze whether the person is likely to stay in the community, or if they have ties elsewhere that would aid them in running from their case. For example, if you could easily return to a large community in another country, then you are considered a flight risk.
Another factor is whether you have a job. Being in custody will prevent you from working, and could therefore result in a loss of your job. Job insecurity is a major cause of crime, and the court wants to reduce both crime levels and repeat offenders continually cycling through the system. Therefore, having a job is a point in your favor when trying to get out on bond.
The Bond Hearing
As previously mentioned, many people do not have a defense attorney when bond is initially set. This doesn’t mean that you are stuck with a bond that was set before you had representation. Once you hire an attorney, they can request a bond hearing.
Your attorney will then write a motion utilizing the factors listed above to argue why your bond should be lowered, or they can present an oral argument before the judge and DA. Both sides are given an opportunity to present their arguments and rebuttals, and then the judge makes a decision about whether to set the bond at a new amount, or to keep the current bond.
Is bond solely about money?
In most ways, yes. While conditions of bond can include an ankle monitor preventing you from going within a certain radius of another individual or a no-contact order, most involve some type of financial component.
This financial component is the reason our bond system has seen recent criticism in the media. The idea of the bond system is to allow individuals who are not a danger to society to go back into the public while waiting for the disposition of their case. It is no secret that the criminal justice system works slowly, and if we left people in custody while they waited for their case to be handled, they would almost certainly be waiting for at least a year.
On the other hand, you want people who are a danger to society kept in custody so they can’t harm someone in the public before their court date. For example, we wouldn’t want Ted Bundy to have been released while awaiting trial. He made multiple attempts to escape and killed many people. It makes sense to keep him in custody while he awaits his trial.
The problem with bail is, while we understand its purpose, it deeply affects low-income individuals. If you are arrested for stealing food from a grocery store, you don’t have the $200 to make bail. Sure, $200 is a far lower cost than the $1 million bond set for a murder case, but if you are struggling to even buy food, how can you afford to spend $200 on bail? The answer is: you can’t.
This forces low-income individuals to wait in custody until their case is resolved. This also means there is pressure to accept any plea deal that comes your way. Why would you sit in custody and wait for a jury trial on a misdemeanor, when the maximum punishment you can receive is one year? It will take longer than that year to even have your case heard before a jury. This incentivizes people to plead, regardless of whether they believe the deal is fair.
Contrast this situation to one where a bond is set for someone who is very wealthy. They aren't in jail waiting for a court date, so they aren't pressured to take a deal that isn't fair, or plead to a crime they didn't commit.
Do you have to pay the full amount at once?
No! In fact, you don’t have to pay the full amount of the bond at all. You only have to pay 10% of the amount set by the court. Which means if your bond is set at $500, you only need to pay $50. You can also hire a bail bondsman, and the way they handle how much you pay can differ depending on whom you hire.
Do you get your bond money back?
If you posted your own cash bond or if someone posted a cash bond on your behalf, you (or they) get all of your money back at the conclusion of the case.*
* Assuming you made all your court appearances and met all the conditions that the court assigns
If you hired a bail bondsman, you would not get back the fees. Those fees are handled separately by the bail bondsman and their business, and has nothing to do with the court system.
Sometimes, you won’t get the money back when the court “forfeits your bond.” This is rare, and normally happens on small charges. Let’s say you get charged with public intoxication and your bond is set at $500. You then pay the $50 to get bonded out and leave jail, but never come back for your court date.
The cost of a public intox happens to be $50, so the court can choose to forfeit your bond to pay the cost and it is like you plead guilty without even being there. You will avoid a warrant for your arrest, but the charge will remain on Oklahoma State Courts Network (OSCN) with “bond forfeited.”
Can you get released without paying bond?
There are a few instances where you can be released from custody without paying bond. One of these is when you receive a personal recognizance (PR) bond. This is a guarantee to the court that you will return on your court date. You will sign a document in the jail making this guarantee, and it will be filed in your case. A PR bond is not typically given on larger charges, and is almost never given if you have ever failed to appear.
If you fail to appear for your court date after you sign the PR bond, the state can file an additional case against you for “bail jumping.” This is a felony charge that carries up to 2 years in prison and a fine of up to $5,000. This punishment isn’t the only problem; once you have a bail jumping charge, it is unlikely that you will ever get a low bond again. This is highly considered when determining bonds, which means you’ll probably spend a significant amount of time in custody waiting on the disposition of any future cases.
Another instance of getting out of custody without paying bond is when the case is disposed of. Of course, the state can choose to not file or dismiss your case. If this happens, you are immediately released from custody because they have no reason to hold you. You can also plead on your case, which could result in you being released. We say “could” because you would not be released if you are required to serve additional jail time as part of your plea deal.
If you plead to probation, you will be released; if you plead to credit for time served and you have served the number of days necessary, you will be released. However, if you plead to 30 days in jail and have only served 15 days, you would remain in jail until the conclusion of your sentence and would no longer have the ability to post bond to be released.
Does bond apply to jail sentences?
No. Bond doesn’t apply to jail sentences imposed by the court or jail sentences pursuant to a plea deal. Bond is in place solely for when you are waiting for the disposition of your case. This is something that has been misunderstood, and misconstrued in the media recently.
While bond does provide a significant advantage for wealthy individuals by allowing them to buy their way out of jail while awaiting trial, it does not allow them to buy their way out of a jail sentence.
The Bottom Line
The current bond system allows the wealthy to buy their way out of jail, and leaves the poor to languish in custody for small crimes solely because they can’t afford their bond. While the bond system was put in place with good intentions, keeping the dangerous criminals in custody while setting people free for minor mistakes, it has led to a functional debtors' prison, where the poor stay in and the wealthy go free.