“My Adult Child Is In Jail! How Do I Get Her Out?”
This blog post is for the parents whose adult child has been arrested and charged with one or more crimes and don’t know what to do or where to turn.
“Stuff” happens. And, when “stuff” happens, the call usually goes something like this:
“Mr. Marsh, I just found out that my son/daughter is in jail. He/she is 19. I heard that he/she was arrested for possession of marijuana! We have never been through anything like this. They won’t even let me talk to him/her. We don’t know where to start. What do we do?”
Having little knowledge of the criminal justice system, most parents feel frustration, confusion, anxiety, and even anger when trying to unravel the intricacies of a system that is totally foreign to them. Many search for answers on the internet, only to find that the information is outdated, inapplicable, or just plain wrong, which leads to more anxiety and stress. These are normal, human reactions to a traumatic event like a child’s arrest.
An arrest is a constitutionally significant event governed by particular laws and regulations, the complexity of which challenges even the most experienced lawyers from time to time. Because every case is different, it would be impossible to compose a sequential to-do list that applies to every case. However, in a typical case where officers arrest someone whom they believe has committed a crime, there are certain, basic steps that apply in most situations. Let’s start at the beginning.
First, if you receive the call from someone other than your child, ask the caller (1) his/her name, telephone number, and relationship to your child, e.g. friend, roommate, arresting officer, etc., (2) what crimes your child has been charged with and (3) where your child is being held. If the caller is your child, it would not be prudent to discuss the details of the events leading up to the arrest or the arrest itself because the call may be recorded and the information used against the child in court. Or, a jailhouse snitch may overhear your child make incriminating statements and provide that information to law enforcement in exchange for concessions in his/her own case.
Next, you need to get your child out of jail, if possible. In most cases, there is no practical reason to leave your child in jail if he/she is charged with a bailable offense. Call the facility where your child is being held, and find out whether your child will be released on her own recognizance or whether a bond amount has been set. If bond has been set, ask whether bond must be paid in cash (the total amount), whether a bondsman can be used, and whether a property bond will be acceptable.
The sole purpose of monetary conditions is to assure the defendant’s appearance in court. Think of bail (or bond) as an insurance policy. In exchange for money (or property in some cases) the person is released from jail. If the person fails to appear in court, the bail may be forfeited and a bench warrant issued for the person.
Bail is automatic in misdemeanor cases. Sometimes the arresting officer sets the amount of bail. Other times, the amount of bond is determined by a fixed schedule providing for bonds in certain amounts for specified offenses. A magistrate judge is authorized to set bail in some, but not all, felony cases. Some crimes, such as rape, murder, armed robbery, aggravated sodomy, and others, are only bailable by a Superior Court judge.
If the bail amount has been set, that means that you, or anyone else, may go to the jail and post bond, either in cash or by tendering deeds to property, and the person will be released from jail. In many cases, it is not necessary that you pay the entire bail amount in cash or property. You may decide to use the services of a bondsman, someone who is qualified and authorized to “stand good” for the entire amount of bail in exchange for your payment of a premium, plus a service charge. The premium is typically around ten percent of the total bail amount plus an administrative fee.
If you go through a bondsman and your child appears in court as required, you are not entitled to any amount of money as a refund. The percentage you paid was a premium, just like the premium you pay for auto or health insurance in exchange for coverage far above the premium amount. If, on the other hand, you posted a cash or property bond, you are entitled to a refund of the entire amount of cash or property once your child has satisfied his/her obligation to appear in court until the case is concluded.
If bail has not been set, that could mean one of several things. First, it could mean that the magistrate judge has not yet considered bail. Or, it could mean that your child has been charged with a crime that is bailable only by a Superior Court judge. In that event, it would be necessary to file a motion requesting that the person be released on bail. Once a motion is filed, the superior court is obligated to notify the district attorney and set a date for a hearing within 10 days of the time of the filing of the motion.
Generally, courts look at four factors in determining whether to grant bond. Those factors are:
1. Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
2. Poses no significant threat or danger to any person;
3. Poses no significant risk of committing any felony pending trial; and
4. Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
Once you have posted bond and your child has been released from jail, you should immediately retain a lawyer to represent him/her, and urge your child to follow the lawyer’s advice. To learn the reasons why your child will need a lawyer, read my blog post entitled “Do I Need A Lawyer?” If your child is an indigent adult, he or she should apply for the public defender, a lawyer paid by the county to represent indigent defendants in criminal cases.
Remember, every case is different. What I have provided in this blog post is not meant to cover every situation. If you have specific questions about your child’s case, please do not hesitate to contact me. I will do my best to explain your options.
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