RESERVING BAIL

When you are arrested, jailed and accused of a crime, your first hearing usually includes setting bail.  The baseline ideal, from the point of view of the defendant, is to be released on your personal recognizance.  This means you may be released without paying any bail money, simply based on your promise to return to all your hearings and follow all the other conditions of your release.  But this is not in your best interest if you have any other holds, because you will stay in jail and not get credit for time served on your new case.

Few people outside the system understand that “credit for time served” only applies if you are “held” on that specific case.  Let’s take an example.  You get arrested for driving with a suspended license (based on unpaid traffic ticket).  Your eager attorney argues for you to be released without paying any bail.  The judge signs a release order.  But your lawyer didn’t check that oops you have an outstanding shoplifting case from years back, .  So while you are “released” on the new case, you will still be held in jail, but you will only get credit on the old case.  When the new case resolves, it will look like you spent zero time in jail.  And any jail days you get will have to be served.

The way defense lawyers get around this, if they are aware of the hold, and almost all of them will check for holds, is to “reserve bail.”   That means bail is not set on the new case, and the person is held in custody, including on the new case.  But if the other holds are later dropped, the person can then argue for release at the later date.  This is efficient for the accused, who can get out at the first opportunity, while maximizing credit for time served.

On the other hand, it can be quite unfair.  A person might have ten cases for ongoing issues and be getting “credit for time served” on all of them at the same time.  As the cases resolve, each prosecutor is writing a document that the accused spent so and so many days in custody on that case, but the days are the same days for all ten cases, so in a sense the accused may get tenfold credit for the time served.  A person with a single charge may spend the same amount of time in jail as a person with ten charges.

This is somewhat simplistic, because of course as the convictions roll in, many systems have a point system, offender score, or sentencing grid that will lead to longer sentences for the later convictions.  For example, the first DUI (driving under the influence) has a mandatory one day in jail while the second DUI has a mandatory 30 days in jail.  There are also a myriad of first time offender programs that allow people a chance to stay out of jail, usually by doing treatment and community service.

For the people in custody, it is very hard to understand the concept that a judge can tell them they are released, and yet they can be held in jail.  The idea that each case is separate and independent, that different cities, counties and governmental agencies might work completely separately, or that what one judge says does not rule out what another judge said is very confusing.  Because in-jail arraignments and bail hearings are in a chaotic and rushed setting, it is rare that the defense attorney has time to fully explain the legal system to the point that the newly arrested person can understand.

I imagine a lot of suspects who are just worried about getting to work before they get fired, or getting home before the babysitter leaves, have a really hard time grasping the concept of reserving bail.  They are standing in front of a judge, wanting to get out of jail, and often no one has really explained that they will not get out of jail no matter what happens at this hearing, so it is best to “reserve bail.”  So when they hear the attorney tell the judge they don’t want to talk about bail at this time, it is quite difficult.

This is one of the many things that in an ideal world, the lawyer would have time to fully explain to the defendant prior to the hearing.  And the defendant would have time to fully process it.  Everyone would understand about the whole concept of conflict of laws, the criminal justice system, the bail bond system and many more things.  But then again, in an ideal world, perhaps there would not be any jails, or defendants, or crime.   This is one of the many cases in which we are called upon to “forgive the world for being the way it is.”  A tall order for some of us idealists.