All About Bail

Posted by Perry de Marco, Sr. on 2 December 2013

When a defendant is arrested and charged with a criminal offense, one of the first questions to address is the matter of bail. In the Commonwealth of Pennsylvania, pre-trial release on bail is afforded to a defendant except for Capital Crimes, those charging Murder or for which a sentence of life imprisonment might be imposed. The right to bail is provided for by the Eighth Amendment of the United States Constitution, Article I § 14 of the Pennsylvania Constitution, and by Rules 520-522 of the Pennsylvania Rules of Criminal Procedure. Unfortunately, most Defendants and lay people do not fully understand the issues surrounding the question of bail. In short bail is designed to enable the release of a defendant charged with a crime, while at the same time ensuring that he or she will appear for Court and the public will be protected. In Philadelphia County, this decision is made by Bail Commissioners who preside in Bail Arraignment Court located in the basement of the Philadelphia Criminal Justice Center.

Arraignment Court operates 24 hours per day, seven days per week. It is staffed by representatives of both the District Attorney’s Office and the Office of the Public Defender. Defendants who have retained private attorneys are entitled to have their own lawyers appear and make bail arguments on their behalf. At the time of the bail hearing, the Commissioner reads a summary of the charges lodged against the defendant. He considers, among other things, the seriousness of the offense, the danger presented to the public, the criminal history of the defendant, if any, the prior history of the defendant regarding his prior failures to appear for court, his family ties to the community, his education, employment, and any other relevant factor that may weigh on a bail decision. He also considers bail guidelines, which are designed to give a bail range for cases of a similar nature. Once the commissioner announces his bail decision, both the defendant and the District Attorney have the right to take an immediate appeal to a Municipal Court Judge should they chose to do so. This appeal is done via a telephone conference immediately after the Commissioner’s decision is made. Once the final decision is made, the defendant is permitted to make a telephone call to the person who will assist in the payment of the bail premium. Usually, the premium is set at ten percent of the bail amount. So if the bail were set at $10,000.00, the premium would be $1000.00 plus some minor administrative costs. In certain cases however, the commissioner may order that the entire amount be paid if he deems that case warrants such treatment. In Philadelphia County, bail can be paid by credit card.

Once the Defendant is prepared to pay the bail, the next decision to be made, is who will act a surety? Unfortunately, most people do not understand the responsibilities of the surety. The surety is the person who pays the bail and who guarantees the appearance of the defendant in court. The surety obligates himself by signing a Bail Bond. The surety must understand that if the defendant fails to appear for court and the bail is “sued out” or forfeited, not only does the surety lose the premium paid but he or she is also responsible for the full amount of the bail.

For example: If bail is set at $10,000.00 at 10%, and the defendant fails to appear, the surety not only loses his $1000.00 premium but is also responsible to pay the additional $9000.00. This can have devastating effects when sureties put up their homes or real estate as collateral for bail.

There are additional opportunities to address bail after the initial bail arraignment. A defendant can file a motion in the Court of Common Pleas to have his bail reduced. Once a Judge of the Court of Common Pleas makes a decision on bail, that decision can only be appealed to the Superior Court of Pennsylvania. However, in counties such as Philadelphia and Allegheny, where there is also a Municipal Court, the defendant can also make a bail argument at the time of his Preliminary Hearing. If the defendant makes the bail argument here first and he is dissatisfied with the decision, he can still file a bail motion in Common Pleas Court.

Once a defendant has been released on bail, his responsibility is to appear in court when subpoenaed to do so. Failure to appear may result in the issuance of a bench warrant and, as previously stated, having the bail forfeited. Bail is refunded to the surety at the conclusion of the case.

Currently, in Philadelphia County, the city charges a premium of 30% of the premium paid up to $750.00 as to each bail premium paid. It is common practice by some lawyers to accept assignments of bail refunds as payment, partial or otherwise, for counsel fees. These assignments are contracts negotiated between the lawyer, the surety and the Defendant. The assignments provide a means by which the defendant can secure his release and retain private counsel should he chose to do so.

Last but not least, it is most important for a defendant to have experienced counsel advocating for him or her regarding bail. It is much easier and much more effective to represent a defendant who is on bail and not in custody since the defendant is able to assist his attorney in the investigation and preparation of his defense.

We at the Law Offices of Perry de Marco, Sr., have nearly 40 years experience in advocating for the release of our clients on bail. Having respected counsel is one of the primary factors which courts consider in making serious bail decisions.

Contact the Law Offices of Perry de Marco, Sr. today in order to arrange for a free consultation. 215-563-8000