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Photo of Matt M. McClenahen

Bail Basics in Pennsylvania

On Behalf of | Apr 25, 2013 | Bail

Bail is the tool, which the courts use to assure a defendant’s appearance at future court dates. In Pennsylvania, criminal charges are filed in the magisterial district courts, and, therefore, it is the task of magisterial district judges to set bail. Bail is set in all misdemeanor and felony cases, while a defendant is not entitled to bail if he is charged with an offense punishable by death or life in prison. In rare non-homicide cases, a magisterial district court could refuse to set bail if it appears that pre-trial detention is the only means of securing a defendant’s appearance.

Bail practices vary from county to county, but as a general rule, defendants facing misdemeanor charges will receive their charges in the mail, along with a summons requiring them to appear at a preliminary hearing. Such defendants are generally not a flight risk, nor do they pose a serious threat to the community. Therefore, magisterial district judges will usually set bail at “ROR” or “unsecured” in such cases, at the time the defendant appears for a preliminary hearing. ROR stands for “released on own recognizance,” which means that a defendant must simply promise to appear at all future court dates. Unsecured bail does not require a defendant to post any cash to stay out of jail, however, if a defendant on unsecured bail fails to appear at a future court date, then he could be ordered by the court to pay the amount of the unsecured bail, when he is apprehended.

In felony cases, defendants rarely receive a summons in the mail. Rather, the police obtain an arrest warrant and take the defendant into custody as soon as possible. The defendant is then taken before the magisterial district judge, where bail is set. If the offense occurs in the middle of the night, then the defendant will likely be held at the county jail until early the next morning, at which time he will meet with the on-duty magisterial district judge via a video arraignment. Bail is set at that time.

If felony charges arise from an ongoing investigation of which the defendant is aware, then the detective will inform the defendant’s attorney when charges will be filed. The defense attorney, detective and magisterial district court then set up a time for the defendant to turn himself in at the magisterial district court at a set date and time. This is known as a “walk-in arrest” or “arrest by appointment.” Bail will normally be far less in these cases than in those where a defendant is simply arrested by surprise and taken into custody.

There are also rare misdemeanor cases, where the police will take a defendant into custody for immediate arraignment before a magisterial district judge. For example, if a defendant is homeless, or is about to leave the Commonwealth or the United States, the police may deem the suspect to be too great of a flight risk for them to merely send him a summons in the mail. For example, I once had a European client who was arrested for DUI the night before he was supposed to fly home. He was not a Penn State student, but had been visiting a friend, who was an international student. Because this defendant had no ties to the community, the police held him until the next morning, at which time he was arraigned and cash bail was imposed. In a normal DUI case on the other hand, defendants simply receive their charges in the mail along with a notice to appear in court.

When setting bail, the judge seeks to ascertain certain factors, which will influence the bail decision. These factors are related to the defendant’s likelihood to appear in court, as well as whether he poses a danger to the public. The judge will want to know whether the defendant has ever failed to appear in court before, whether the defendant has strong ties to the local community, such as a job and family, and how much money the defendant has available for bail.

If a judge sets cash bail, the defendant can be released from detention in county jail when someone posts that amount on the defendant’s behalf. The person posting bail is known as the “surety.” In some cases, the judge may allow the defendant to post only 5% or 10% of the total bail amount. Often times, defendants with limited funds will enlist the aid of a bail bondsman, who will post the entire bail amount on the defendant’s behalf. The bail bondsman’s fee is a percentage of the bail amount. Because this is the bondsman’s fee, the person paying the bondsman never gets this money back. If, on the other hand, a friend or family member posts bail, then he or she will get all of the money back after the defendant has either been found not guilty or sentenced.

The judge may also impose non-monetary bail conditions. For example, the judge will always mandate that a defendant have no contact with any victims and to commit no new violations of law. Another common non-monetary bail condition is that a defendant refrain from drugs and alcohol. The defendant may also be required to report regularly to the Probation Department or a Bail Agency for “supervised bail.” Supervised bail usually includes drug testing. If a defendant violates a non-monetary bail condition, he can expect his bail to be revoked, and he will sit in county jail until a final order is entered in his case.

Matt McClenahen is a criminal defense attorney in State College, PA.

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