Bail and Bond

Bail is the security given by a defendant to ensure appearance at court proceedings. Justice of the Peace Courts may set bail for certain offenses, allowing defendants to secure release from custody while awaiting trial. The bail system balances the defendant’s liberty interest against the community’s interest in ensuring court appearance and public safety.

Purpose of Bail

Bail serves two primary purposes:

Ensuring Court Appearance

The fundamental purpose of bail is to secure the defendant’s appearance at all court proceedings. The defendant posts security — money or property — that will be forfeited if the defendant fails to appear.

Protecting Public Safety

When setting bail conditions, the court may also consider whether the defendant poses a danger to the community or to specific individuals, such as victims or witnesses.

CCRP 311

JP Jurisdiction Over Bail

Justice of the Peace Courts have limited jurisdiction to set bail:

Offenses Where JP May Set Bail

A JP may fix bail only for offenses that are:

• Non-capital (not punishable by death)
• Not necessarily punishable by imprisonment at hard labor

In practice, this means JPs set bail primarily for misdemeanors and minor felonies. The JP’s authority typically arises when:

• Issuing an arrest warrant that results in an arrest
• Conducting a preliminary examination
• Arraigning a defendant for a minor offense

Offenses Beyond JP Authority

For capital offenses or offenses necessarily punishable at hard labor, only a district court judge may fix bail. If a defendant is arrested on such a charge and brought before a JP, the JP must remand the defendant to custody and refer the matter to the district court. This is a jurisdictional limitation, not a denial of bail on the merits.

CCRP 312CCRP 315

Types of Bail

Louisiana law recognizes several forms of bail:

Bail Bond

A bail bond is a contract between the defendant (and often a surety, such as a bail bondsman) and the court. The defendant promises to appear at all proceedings, and the surety guarantees payment of the bail amount if the defendant fails to appear.

Commercial surety bonds — The most common type. A bail bondsman charges a non-refundable premium (typically 10-15% of the bail amount) and guarantees the full amount to the court.

Cash Deposit

The defendant or someone on the defendant’s behalf deposits the full bail amount in cash with the court. The cash is returned when the case concludes (minus any court fees), provided the defendant appeared at all proceedings.

Personal Surety

In some cases, an individual may serve as surety by pledging personal assets to guarantee the defendant’s appearance. The personal surety must demonstrate sufficient financial resources.

Property Bond

Real property may be pledged as bail. The property must have equity exceeding the bail amount, and a lien is placed on the property that may be foreclosed if the defendant fails to appear.

Release on Recognizance (ROR)

For minor offenses or defendants with strong community ties and no flight risk, the court may release the defendant on personal recognizance — a promise to appear without posting any security.

CCRP 321CCRP 330

Setting the Bail Amount

When setting bail, the JP must consider specific factors established by law.

Factors in Determining Amount

The court must consider the following factors to ensure the defendant’s presence and community safety:

CCRP 316

1. Seriousness of the offense — Including whether it involves violence or controlled substances
2. Weight of the evidence — Strength of the case against the defendant
3. Previous criminal record — Prior convictions
4. Ability to give bail — The defendant’s financial resources
5. Nature and seriousness of danger — Threat posed to any person or the community
6. Participation in drug testing — Voluntary participation in pretrial programs
7. Presence of controlled substances — Whether drugs were present in the defendant’s body
8. Existing bail obligations — Whether the defendant is already out on bond for a felony
9. Other circumstances — Any other factor affecting the probability of appearance
10. Type or form of bail — The method of security proposed

Prohibition Against Excessive Bail

The Louisiana Constitution prohibits excessive bail. The court must fix bail in an amount reasonably calculated to ensure the defendant’s appearance — it cannot be set so high as to effectively deny release.

CCRP 316CCRP 334

Bail Conditions

Beyond the bail amount, the court may impose conditions on the defendant’s release.

Standard Conditions

All bail requires that the defendant:

• Appear at all scheduled court proceedings
• Not leave the jurisdiction without court permission
• Not commit any new offenses while on bail
• Maintain contact with defense counsel

Special Conditions

Depending on the offense and circumstances, the court may impose additional conditions:

• No contact orders — Prohibiting contact with victims or witnesses
• Geographic restrictions — Staying away from certain locations
• Curfew — Requiring the defendant to be home by a certain time
• Drug/alcohol testing — Regular testing for defendants with substance issues
• GPS monitoring — Electronic monitoring of defendant’s location
• Surrender of firearms — Required in domestic violence cases
• Employment requirements — Maintaining or seeking employment

Violation of bail conditions may result in bail revocation and return to custody.

CCRP 320

The Bail Process

When a defendant is arrested and brought before a JP:

Initial Appearance

The defendant must be brought before a judicial officer within a reasonable time after arrest (typically 72 hours). At this initial appearance:

1. The defendant is informed of the charges
2. The defendant is informed of the right to counsel
3. The court determines whether bail is appropriate
4. If bail is appropriate, the court sets the amount and conditions

Note: For warrantless arrests, a separate probable cause determination must be made within 48 hours. See Post-Arrest Processing for details.

CCRP 230CCRP 230.2

Bail Hearing

If the defendant requests a hearing to argue for lower bail or release on recognizance, the court conducts a bail hearing where both sides may present evidence on the appropriate bail amount.

Posting Bail

Once bail is set, the defendant (or someone on the defendant’s behalf) may post bail with the clerk of court. Upon posting bail and agreeing to all conditions, the defendant is released from custody.

CCRP 313CCRP 314

Bail Schedules

Many jurisdictions maintain bail schedules — predetermined bail amounts for common offenses. These schedules allow law enforcement to release defendants on bail before a court appearance, particularly for minor offenses.

Use of Bail Schedules

When an arrest is made and a bail schedule applies, the arresting agency may accept bail according to the schedule without requiring the defendant to appear before a judge first. This expedites release for minor offenses.

Judicial Override

Even when a bail schedule applies, the defendant may request a bail hearing to argue for a lower amount. The schedule is a default — not an inflexible rule.

Bail Forfeiture

If a defendant fails to appear as required, the bail may be forfeited.

Forfeiture Process

When a defendant fails to appear:

1. The court issues a bench warrant for the defendant’s arrest
2. A rule to show cause is issued to the surety
3. The surety has an opportunity to produce the defendant or show cause why bail should not be forfeited
4. If the defendant is not produced and no valid excuse exists, the full bail amount is forfeited to the state

Reinstatement

In some circumstances, forfeited bail may be reinstated if the defendant is subsequently located and surrendered, particularly if the failure to appear resulted from circumstances beyond the defendant’s control.

Bail Review and Modification

Bail is not permanent — it may be reviewed and modified under certain circumstances.

Reduction of Bail

The defendant may file a motion to reduce bail at any time, arguing that circumstances have changed or that the original amount was excessive. If the prosecution does not oppose, the court may reduce bail without a hearing.

Increase of Bail

The prosecution may move to increase bail if:

• New charges are filed
• The defendant violates bail conditions
• New evidence suggests increased flight risk
• The defendant demonstrates a threat to victim or community safety

Revocation of Bail

Bail may be revoked entirely if the defendant:

• Commits a new offense while on bail
• Repeatedly violates bail conditions
• Threatens or intimidates victims or witnesses
• Demonstrates intent to flee

Upon revocation, the defendant is returned to custody pending trial.

Rights of the Defendant

Right to Reasonable Bail

For bailable offenses, the defendant has a constitutional right to reasonable bail. Bail cannot be denied (for bailable offenses) or set so high as to effectively deny release.

Right to a Hearing

The defendant has the right to a hearing on the appropriate bail amount, where the defendant may present evidence of community ties, employment, and other factors favoring release.

Right to Counsel

The defendant has the right to be represented by an attorney at bail proceedings.

Related Topics

• Magistrate Authority — Overview of JP criminal functions
• Preliminary Examinations — Bail set after examination
• Criminal Complaints — How arrests initiate bail process