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The Bail Process in Maryland

by James E Crawford on Oct. 18, 2017


Summary: The Bail Process- How does it work


 Many times, a criminal defendant is not even aware that she has been charged in a matter. Often, the first time she becomes aware of the problem is when she is arrested by the police or receives a summons in the mail indicating that she has a trial date.  A commissioner usually determines whether summons or warrant will be issued. The charging officer and sometimes a state’s attorney also play a role. When a complainant describes the alleged severity of the circumstances to the commissioner’s office, certain types of cases almost always require a warrant; murder or homicide, a felony sex matter, and child pornography are a few examples.  When the warrant is issued, it is given to the local police department and the “warrant squads” will attempt to serve the defendant. Sometimes they come in the middle of the night, and other times they make routine stops at the house to lock the person up.  I always advise people that if they receive a call from a detective or police officer indicating there is a warrant or that they need to come to the station, please be aware that you will be arrested and put in jail. You need to have your attorney contact them immediately to determine what the status is and how it can be handled. If there is a warrant, it is usually more advantageous to have your lawyer schedule a time to turn yourself in to the arresting officer or detective. That way, you can have all your ducks in a row as far as bail and timing your ability to get out of jail.  

A warrant is a declaration order from the state directing a police officer to arrest and take a person into custody. The defendant is taken to a charging center, such as “central booking” in Baltimore. Being arrested is a scary proposition. Many people who find out they have a warrant contact my office, and they are scared to death. They want to know if everything will be okay. Unfortunately, in that situation, the arrest and booking must occur. But most people find it comforting to know they have a lawyer in their corner, and they appreciate it when I set up a time for them to turn themselves in so that we can time the arrest and the booking process in a reasonable manner. Typically, I speak to the arresting officer or the detective and make a deal where the person will turn themselves in at a specific time. I usually do it early in the morning so we can try to get them out hours later. It’s important to understand the booking process in a scenario with a warrant. Often, we can get someone turned in, booked, and out within several hours. It simply depends upon the jurisdiction and the crimes alleged. If a summons is issued, then you don’t need to worry about being locked up. The commissioner has deemed the offense not worthy of a warrant, and the court issues you a summons demanding you appear in the District Court to face charges. But a summons doesn’t necessarily make the case less serious. It is extremely important to have a lawyer during this period to help you navigate the process. After you are put in handcuffs, you are taken to the booking department. You may sit there for a short time or maybe a long one, depending on how busy the station is. Once you are booked (which includes fingerprinting and photographing), then other information is obtained from you. In Maryland, each defendant has the right to be seen by a commissioner for a bail review within 24 hours. Usually, that happens shortly after the arrest. In Baltimore Central Booking, it can take two days or more. A commissioner gathers information from you, assesses the charges, and determines whether bail is appropriate. The commissioner can deny bail, issue a surety bond (which means that an insurance company is involved in posting the bail), issue a high or low bail, or a cash bail. Commissioners in some cases can allow property to be posted in lieu of bail.  Up until a couple years ago, the so-called mini-hearing in front of a commissioner was usually done with just the commissioner and the defendant. It was deemed of little consequence. However, I and many other lawyers believe this step can be very important concerning whether or not bail is given. Recently, lawyers have been allowed to attend these mini-hearings with the commissioner. I think it’s helpful in many circumstances.  However, because these hearings may occur at any time of the day or night, it’s difficult for a private lawyer to attend. The public defender’s office allows lawyers to attend these hearings and get paid through the state so that a person at least has someone they can ask about the process.  If the commissioner sets a bail, the defendant may post bail immediately and walk out of the detention center. That is why it is so important to have the bondsman or the bail bond agency ready to proceed before you are locked up. If the commissioner sets a reasonable bail and you have a bondsman available, the bondsman will usually do the legwork and post bail. They get paid a fee for doing so. Generally, the fee is 10% of the bail, but I have seen a wide range of costs over the years. The bondsman’s cost of insurance is usually about 4%, and anything they make over that is profit. If all goes well, then the defendant should be out within a few hours. However, there are many circumstances where the commissioner will deny bail or set a very high bail. The defendant has the legal right to wait to see a District Court judge, either later that day or the next. They will not be released until that occurs, unless they post bail in the amount set by the commissioner.  At this point, caution is merited, because if you take a chance on getting a better deal with a judge and you strike out, then you may be stuck for quite a while. You’re playing with fire if you don’t know the ropes and the jurisdiction. It takes a very experienced attorney to know what the chances are for a defendant to receive a bail from a District Court judge if bail was denied by a commissioner or set very high. Many times, people want to take a chance and try to get the bail reduced because the commissioner set it high. Sometimes that turns out to be a mistake, because the District Court judge denies bail. Then all bets are off as far as the commissioner’s recommendation. The judge has denied bail, so the defendant will not be getting out. If the defendant is charged with a felony and has been denied bail, she has the right to a preliminary hearing if requested within ten days. Generally, a defendant is stuck in jail unless she can convince the District Court judge at the preliminary hearing to issue a bail. This is rare, because judges are sitting that day for the preliminary hearing and not any bail review. However, a good lawyer will try to craft a scenario where that can occur if prior bail has been denied. A lawyer can also request that an additional bail review or a habeas corpus be heard. (Habeas corpus means “bring the body to the court” because it is being held illegally). Attempts to get the defendant out of jail prior to trial are often futile because of the nature of the charges. The facts of the case and the defendant’s background (such as prior criminal history) as well as the nature of the alleged crime will influence that determination. Flight risk, public protection, and a determination if the defendant will show up are what the judge is pondering. Technically, under the Constitution, a defendant deserves a bail release—but not always. From my experience working with criminal defendants, the bail scenario is one of the most difficult things to determine. The Maryland bail industry has very strong connections to the Maryland General Assembly, and bail bondsmen get paid for their services. The legislature allows the bonds to remain high in many circumstances which, in my opinion, are unreasonable. However, in many Maryland counties, they are now lower than they have ever been and in complete contradiction to other counties where they are set high. It’s wise to have an attorney who knows what she is doing in these circumstances. I’ve seen many situations where clients opt to have a judge make a determination on the bail when they could have walked out on a commissioner’s bail, even if it was set high. Defendants who are uneducated about the process of getting out with the commissioner’s bail can end up sitting in jail for weeks or months at a time. It’s better to have an experienced attorney make that decision. On the state level, home detention and community detention is possible, but rare. Usually it’s simply being released on bail. On the federal level, there is no “bail”, and the standard is much higher. In federal court, judges (or sometimes magistrates) determine whether to release the individual into the community or have them monitored through home detention. Monetary bail is usually not applicable. As with the state, pretrial services will make a determination and recommendation to the judge as to whether the individual should be released. Many people have accused the bail processes of being antiquated. I agree on many levels. The primary purpose of bail is to ensure that the defendant will show up in court later. The other factors to consider are the dangerousness of the defendant to the community, other potential harm to the community, and the defendant’s past record, as well as the facts of the case. Many judges will err on the side of caution when it is a very serious case and hold the defendant without bail or set a very expensive bail. That is why it’s important to have a lawyer with you at the bail review process so she can carve out exceptions as to what’s being alleged. The judges and commissioners are required to assume that all the facts alleged in the case are correct. It’s not a question of guilt or innocence; it’s simply a question of whether or not they should be released on pretrial bail.   


  Jim Crawford

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