When I arrived in New York City and decided to open BAILNYC, I was amazed at how different bail was processed in New York City. In most other jurisdictions, when someone is arrested, there is usually a Bail Schedule according to the offense alleged. New York City Courts are the only courts that are opened 365 days of the year, and then until midnight or 1 a.m.
Instead of a bail schedule, I saw the Deputy District Attorney argue the offense and prior offences of the defendant, then he would say the amount of bail that he wanted and accompanying conditions. Then the defense attorney got an opportunity to to make his observations. Finally the judge would make the decision of the bail amount and conditions.
The administration of justice system on occasion needs to know that the defendant is not getting out of jail with ill gotten funds. You can see these funds as the fruit of the crime. For this reason, measures have been established to prevent this from happening. In most jurisdictions the government files a declaration and makes a request for an examination of the source of the funds being used to bail the defendant out of jail. The declaration is paramount to a probable cause standard. It should state why the government believes that illicit funds will be used to bail the defendant. This declaration normally has arguable facts that takes a reasonable person to believe that illicit funds will be used for the bail.
When such declaration is filed for an examination of the source of the funds being used, a hearing is normally set before the judge within 48 hours. At that hearing witnesses and evidence may be presented to convince the judge, one way or the other.
In New York, they call this process “Surety.” However, what really amazed me, was how easily prosecutors would request “Surety,” at an arraignment hearing with no opposition from the defense. At the very least question the basis for the request. The contrary is like saying “Hispanics commit crimes, and the defendant is Hispanic, thus he must be a criminal.” The purpose of the declaration is to state arguable facts. However, I am critical of the boiler-plate method used in New York Courts to request “Surety.” God, I even saw a ‘domestic violence’ case with a Surety hold. Usually Surety is argued in drug cases, you don’t want the defendant to make bail with drug money. You could also reasonably argue for Surety in a robbery case, where you don’t want the accused to make bail with the money he allegedly robbed.