Is It Better to Bail Out or Stay in Jail?

For most people, getting out of jail before trial is better for the case, the job and the family, and the research backs that up. But getting out and paying a bail agent tonight are not the same choice. Sometimes waiting for the first court hearing gets the person out for less money, or for no money at all.

General information for families, not legal advice. Bail rules change from state to state and county to county. For your case, talk to a criminal defense lawyer or ask for the public defender at the first court date.

Brief

Getting out before trial usually helps the case, but paying a bail agent tonight is a separate choice. Waiting for the first hearing can cost less, or nothing.

People held before trial plead guilty more often and get more jail time than similar people who were released.
The first court date is a real chance for release without money, or for lower bail. Ask a lawyer to ask for it.
A bail agent's fee is not refunded. In California it stays gone even if charges are dropped.
Check for other holds before you pay. Bail on one charge does not release someone held on another.
If you cosign, you can owe the whole bail amount if the person misses court.

Why Getting Out Usually Matters

Often the one deciding is not the person in jail. It is a parent, a partner or a sibling with a phone in one hand and a jail roster in the other. So start with what staying in jail does to a case.

The clearest study looked at hundreds of thousands of misdemeanor cases in Harris County, Texas, the third largest county in the country. Researchers at the University of Pennsylvania Law School compared people held before trial with similar people who got out. They controlled for the bail amount, the charge and criminal history. The people held were 25 percent more likely to plead guilty and 43 percent more likely to be sentenced to jail, and their jail sentences were more than twice as long on average. The study also found they were more likely to commit new crimes later.

Held Before Trial vs. Released, Harris County

Pleaded guilty25% more likelythan similar people who got out

Sentenced to jail43% more likelythan similar people who got out

Length of jail sentenceMore than 2xon average, for those held

Source: Heaton, Mayson and Stevenson, 69 Stanford Law Review 711 (2017), misdemeanor cases in Harris County, Texas.

A second study, by economists who used the random way judges are assigned to cases, found that being held before trial raises the chance of a conviction, mostly through more guilty pleas. It also found signs that detention lowers work in regular jobs after the case.

The reason is not hard to see. A guilty plea is often the fastest way out of a cell. Someone who would fight the charge from home may take a deal from jail just to get back to work.

And jail stays are not short. The Bureau of Justice Statistics reports that people admitted to local jails from July 2022 to June 2023 spent an average of 32 days in custody before release. At midyear 2023, 70 percent of the people in local jails had not been convicted.

When Waiting a Day Can Beat Paying Tonight

Most advice says to bail out, full stop. That skips the part that costs families the most money. The question is not only whether to get out. It is how and when.

Bail set at booking is often a number from a county schedule. A judge can change it. At the first court date, the judge can lower it, raise it, or release the person on a promise to come back. That promise is called release on your own recognizance, and it costs nothing.

California. In In re Humphrey, decided March 25, 2021, the California Supreme Court held that when money bail is needed, the court must consider whether the person can afford it. A judge may not keep someone in jail only because they lack the money. That gives a lawyer something real to argue at the first hearing.
Federal court. The federal bail law lists release on personal recognizance or an unsecured bond as the first options, and says the judge may not set a money condition that results in detention. A detention hearing is held at the first appearance. A delay asked for by the defense is capped at five days and one asked for by the government at three days, except for good cause.
Illinois. Cash bail ended on September 18, 2023, under the Pretrial Fairness Act, the Illinois courts announced. There is no bail to pay. A judge decides release at a hearing.

The trade is simple. If the first hearing is the next morning, a night in jail may be the price of a shot at release with no fee. If the hearing is days away over a weekend, the math flips. Ask the jail or the court clerk when the first court date is before you decide.

The Money You Do Not Get Back

There are two ways most families pay. One is cash bail, the full amount paid to the court. The other is a bail bond, where a licensed agent posts the bail and you pay the agent a fee called the premium.

Cash bail comes back after the case closes if the person makes every court date, though the court may take out fines and costs first. The premium does not come back.

State	Usual bail agent fee	Refund rule
California	Most commonly 10 percent of the bond	Not refunded, even if charges are dropped. Collateral is held until the case is settled. (California Department of Insurance)
Florida	10 percent on a state bond, 15 percent on a federal bond	Full premium returned if the person is never released. Earned once they walk out. Collateral should come back within 21 days of discharge. (Florida Department of Financial Services)
Illinois	No money bail since September 18, 2023	Nothing to pay or refund

A worked example. Say bail is $20,000 in California and the agent charges the common 10 percent. That is about $2,000 you will not see again, even if the case is dismissed the next week. If a judge would have released the person without money at a hearing the next morning, that $2,000 bought one night. If the hearing is four days out and the person has a job to save, it may be money well spent.

When Staying In Can Be the Right Call

It is rare, but it happens. These are the cases where families should slow down and ask a lawyer first.

Another hold. Ask the jail if there is a warrant from another county, a probation hold or an immigration detainer. Paying bail on one charge will not release someone held on another.
Credit for time served. In federal cases, the law says time spent in custody before sentencing counts toward the sentence. If a lawyer expects a short sentence anyway, ask whether days in jail now cut days later. Ask how your state handles this.
Conditions they cannot keep. Release often comes with rules, such as no contact with a named person or staying in the county. Breaking them can put the person back in jail and cost the cosigner the bond.
A cosigner who cannot afford a miss. If you sign and the person skips court, you can owe the full bail amount. Do not put up a house or a car you cannot lose.

A Checklist for Tonight

Find the jail and the booking number. Our jail directory lists jails in every state, with the bail agents closest to each one.
Call the jail. Ask for the bail amount, the charge, any other holds, and the first court date.
Ask about a lawyer. If you cannot pay one, the person can ask for the public defender at the first court date.
Decide on timing. A hearing tomorrow morning is a reason to wait. A hearing after a weekend is a reason to act.
If you use a bail agent, check the license with the state. Get the rate, any fees and the refund rule in writing.
Read the cosigner papers line by line before you sign.

Rules for your state are on the state pages, such as California, Florida and Illinois.

Little Things People Ask

Does bail go down the longer you stay in jail?: Not on its own. Bail changes when a judge changes it, usually at the first court date or at a hearing a lawyer asks for. In California the state Supreme Court ruled in March 2021, in In re Humphrey, that a judge setting money bail must consider whether the person can pay it. Ask the public defender or a private lawyer to ask for lower bail or release without money.
Do you get money back after bailing someone out of jail?: It depends on how you paid. Cash bail paid to the court is usually returned after the case ends, minus any fines or fees the court takes out. A bail agent's fee, called the premium, is not returned. The California Department of Insurance says premiums stay nonrefundable even if charges are dropped. In Florida the state says the full premium comes back only if the person was never released.
What happens if no one bails you out of jail?: The person stays in custody until a judge releases them or the case ends. They still go to court and still get a lawyer. A judge can lower bail or release them without money at a later hearing. Federal data shows people admitted to local jails from July 2022 to June 2023 stayed an average of 32 days before release.
What are the risks of bailing someone out of jail?: If you pay a bail agent, the fee is gone for good. If you cosign, you can owe the full bail amount when the person misses court, and any collateral you put up can be taken. Read every page you sign and ask the agent what happens if the person misses a date.
Why do people bail out of jail?: To keep a job, care for children, and work on the case with a lawyer from home. Research on hundreds of thousands of misdemeanor cases in Harris County, Texas found people held before trial were 25 percent more likely to plead guilty and 43 percent more likely to be sentenced to jail than similar people who were released.