Bail and Pre-Trial Release

Shared with you by the Law Office of Devina Douglas 


When someone is arrested in California, one of the first questions they and their family ask is simple: “How do I get out of jail?” The answer usually involves one of two systems — bail or OR-release. While both are designed to allow defendants to remain out of custody while their criminal case proceeds, they work very differently and can dramatically impact the course of a case.

Understanding how bail and OR-release function in California can help defendants make informed decisions and avoid costly mistakes during an already stressful time.
Bail is essentially a financial guarantee that a defendant will return to court. After an arrest, California courts generally assign a bail amount based on a county “bail schedule,” which lists standard amounts for specific offenses. More serious charges carry higher bail amounts, while lower-level misdemeanors may involve relatively modest sums or no bail at all. For example, a misdemeanor DUI may result in a significantly lower bail amount than a felony domestic violence or robbery charge. Judges can also increase or decrease bail depending on the circumstances of the case, the defendant’s criminal history, public safety concerns, and the likelihood that the person will appear in court.

Many people misunderstand how bail actually works financially. Defendants usually do not have to pay the full amount directly to the court. Instead, most families work with a bail bonds company. Typically, the bondsman charges a non-refundable premium — often around 10% of the total bail amount — in exchange for posting a bond guaranteeing the full amount to the court. (But hiring private counsel can, in some situations, allow you to negotiate a lower premium.) For instance, if bail is set at $50,000, a bondsman may charge approximately $5,000 to secure release. Even if the criminal case is later dismissed, that premium is generally not refunded because it is considered the cost of the service. Alternatively, some defendants or families post the entire bail amount directly with the court in cash. If the defendant appears at all required court hearings and complies with court orders, the money is typically returned at the end of the case, regardless of the outcome.

The main purpose of bail is not punishment. Legally, bail exists to ensure court appearances and protect public safety while preserving the presumption of innocence. A person accused of a crime has not yet been convicted, and California law recognizes that many defendants should not remain in custody solely because their case is pending.

That principle becomes even more important when discussing OR-release, also known as “Own Recognizance” release. An OR-release allows a defendant to leave custody without posting money bail at all. Instead, the defendant signs a written promise agreeing to return to court and comply with any release conditions imposed by the judge.

OR-release is most common in misdemeanor cases, low-level felonies, and situations involving defendants with minimal criminal history and strong community ties. Judges often consider factors such as employment, family connections, prior court compliance, and whether the defendant poses a danger to the community. For many defendants, OR-release can make an enormous difference. Remaining out of custody allows people to continue working, supporting their families, and assisting in their defense. Studies consistently show that defendants released before trial are often better positioned to achieve favorable outcomes compared to those who remain incarcerated during the case.

California’s bail system has undergone significant scrutiny and reform efforts in recent years. Critics argue that traditional cash bail unfairly disadvantages low-income defendants, effectively creating a system where wealthier individuals can secure release while poorer defendants remain jailed despite posing little public safety risk. As a result, many California counties have expanded the use of OR-release and pretrial supervision programs. In some jurisdictions, judges now rely more heavily on risk assessments and individualized evaluations rather than strictly following bail schedules.

That said, OR-release is not automatic. Judges may deny release altogether in serious felony cases involving violence, threats to public safety, or significant flight risk concerns. Courts may also impose conditions on release, including travel restrictions, electronic monitoring, stay-away orders, alcohol testing, or mandatory check-ins with pretrial services. Violating release conditions can have severe consequences. Missing a court date may lead to a bench warrant, revocation of OR-release, forfeiture of bail, or additional criminal charges for failure to appear.

One important reality many defendants discover quickly is that early court appearances matter tremendously. A skilled defense attorney can often argue for reduced bail or OR-release at the arraignment stage by presenting evidence of community ties, employment, lack of criminal history, and other mitigating factors.

​Ultimately, both bail and OR-release are intended to balance two competing interests: protecting public safety while preserving the constitutional rights of individuals accused of crimes. For defendants navigating California’s criminal justice system, understanding how these release mechanisms work can be critical in protecting both their freedom and their future while their case moves through the courts.