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Bond Out Or Remain In Custody?

When a court imposes a high bond for a serious crime, the family of the accused normally has a very serious question to answer.  Should they bond their loved one out, or should they have them remain in custody?

A bond is the money put up, normally by a surety agent (bondsman) to guarantee the accused's appearance in court.

If the family has the resources, they may opt for a cash bond (all the money) or a bail bond (10% of the bond amount and the bondsman puts up the rest).

Still, if a bond is $100,000 or more, a family may be required to come up with $10,000 out of pocket, upfront, in order to secure their loved one's release from custody.

I am an advocate of being out of custody.  Not only is it better for the mental health of the accused (dealing with a pending felony charge is stressful enough living at home, imagine doing it in jail), it - in my experience - can lead to a better result overall.  For instance, a client out of custody is more likely to close their case out to a non-jail/non-prison sentence (probation or community control) whereas a client in custody is more likely to receive a jail or prison sentence.

This is certainly not fair, but the logic goes - a client in custody is more likely to be willing to remain in custody, whereas a client out of custody will not want to go back in.  So a client sitting in jail for six months may be willing to close their case out to a year-long sentence whereas a client in the same situation would likely receive a plea offer of probation since the prosecutor wants to close out the case and also understands that it is difficult to get a defendant to go back into custody willingly.

But, as the family who is financially responsible, you must decide what to do.

If if looks like the case may not be filed or could be dismissed relatively quickly, it may be worth considering having your loved one remain in custody for a few weeks pending a filing decision.  If it looks like the state will likely decline to file a charge (no action) within 21-30 days of arrest, what good is shelling out a non-refundable $10,000 when you could wait four weeks and save the money?

Not saying it's the optimal decision, but it is something to consider.

If the charge is serious and you know that the evidence is sufficient for the state to file charges, then bond your loved one out as soon as you can.

Discuss this matter with your loved one's criminal attorney.  Ultimately it is you - the family - that must decide how to spend your money.  But it is good to get a professional opinion before spending so much money.

Eric Matheny is a criminal defense attorney serving South Florida.

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