Bail Hearing Procedures

Although the accused are presumed innocent until proven guilty, criminal court judges need an incentive to ensure that the accused actually show up to participate in all required court appearances. Bail is that incentive.

The following is an overview of bail hearing procedures, including factors that judges consider when setting bail, what amount and type of bail would be appropriate for a case, and special requirements for defendants out on bail.

What Is Bail?

Setting bail is one of the first steps in a criminal case. It occurs at the arraignment hearing or at the first appearance before a judge. As the case progresses, bail may be adjusted, depending on the circumstances.

Bail is a conditional release of the accused in exchange for money being held by the court until the case is done. If a defendant fails to show up for their court case, the money is retained by the court. (Defendants can also be released on their own recognizance; that is, without posting any bail money.)

Bail can be paid in cash by defendants or their family or friends. It can sometimes also be a surety bond obtained from a bail bondsman. It could take the form of a real estate lien; that is, a lien against an accused person's home or other property.

In some states, bail bondsmen are an integral part of the procedure. In other states, they are outlawed entirely. There is a lot of variation among the states.

The standard three conditions the defendant must meet for any bail bond are:

1. To appear in court at the time and place specified in the bond,
2. To refrain from all criminal activity, and
3. To keep the court issuing the bond apprised of changes to address.

Bail Reform

Three out of five people sitting in U.S. jails have not been convicted of a crime, according to the Center for American Progress. They are in jail because they are too poor to post bail. In recognition of the disproportionate impact of bail requirements on the poor and people of color, a national movement has begun to reform bail in America.

Advocates of reform, and those jurisdictions that have begun the process, want to make communities safer while also minimizing pre-trial jail time and saving taxpayer dollars. Those jurisdictions are starting from the presumption of innocence and favoring pre-trial release. Prosecutors there are required to prove the need for pre-trial detention, which is limited to only those accused of serious offenses.

Courts also are adding services that help defendants make their court appearances, such as childcare, flexible scheduling, and help with transportation. It is still early in the experiment, but reformers point to positive results. For example, Washington, D.C. reported that 94% of defendants were released without bail, and 91% of those appeared at their court proceedings.

Factors Judges Consider When Setting Bail

There are four basic objectives that judges have in mind during the bail hearing procedure. They want to:

1. Minimize risk to the community
2. Protect the integrity of the judicial process
3. Ensure the defendant appears in court
4. Reduce the likelihood that the defendant would commit new crimes

A judge's decision about bail is couched by the limits of state and federal statutes and by the Eighth Amendment of the U.S. Constitution. Conditions are routinely added to all types of bail. In certain serious cases, defendants are not entitled to bail at all.

The History and Character of the Defendant

Judges have access to the defendant's background and criminal history. They will consider the following when making a bail decision:

• The sufficiency of the evidence against the defendant
• Whether the defendant is already subject to bail conditions in a previous case
• Whether they were on probation or parole at the time of the alleged offense
• The seriousness of the charges and criminal history of the defendant
• The defendant's history of appearances at prior court proceedings
• Medical conditions
• History relating to drug and alcohol abuse
• Financial resources
• Employment
• Family ties and length of residence in the community

Assessing Risk to the Community

The court will typically hear brief arguments from both the prosecutors and defense attorneys before setting bail on a case. The parties will present basic facts and circumstances of the current charges. The court might also inquire into the nature and value of any property that might be offered as collateral.

If the judge is convinced that a particular defendant could reasonably pose a threat to the safety of the community, that defendant might be held without bail until trial.

In federal courts, the law favors allowing defendants in a federal criminal cases to be released on personal recognizance or with unsecured appearance bonds if they are determined to pose no risk of flight and no danger to the community. Certain types of charges (including those involving drugs or firearms) automatically carry a legal presumption of risk attached to the defendant. When judges find defendants are ineligible for personal recognizance or unsecured bonds, or that those measures would not reasonably assure appearances or protect the community, they can order pretrial detention or release defendants with conditions.

State and federal laws allow for a number of conditions to be imposed:

• Limit travel (perhaps surrendering their passport)
• Seek or maintain employment
• Refrain from excessive use of alcohol or any use of narcotic drugs, and undergo drug and alcohol testing
• Undergo medical, psychiatric, or psychological treatment
• Start or maintain an educational program
• Comply with a curfew
• Remain in the custody of a designated person
• Check in periodically with authorities
• Don't possess a firearm or other dangerous weapon
• Don't have any contact with the crime victim or others designated by the court
• Agree to other reasonable conditions the court may impose to ensure a defendant's appearance

Changing or Appealing a Bail Decision

Both the defendant and the government may appeal a bail decision, though the practice will vary greatly from state to state. If a prosecutor or defendant wishes to appeal the initial bail decision to a higher court, the appeal will be very narrow in scope.

The only question an appellate court will consider is whether the trial court abused its discretion when granting or denying bail. In other words, an appellate court will uphold a bail decision unless it is clearly unreasonable, erroneous, or arbitrary and not supported by the law or the facts of the case.

Violation of Bail

A prosecutor may file a motion for a revocation of bail if a defendant has violated conditions of bail or has missed a court appearance. A review of that bail will often occur in the same court as the original bail order. If a defendant is found to have violated the conditions of bail, they could be charged with a separate crime and will often face lengthy pre-trial detention.

Get Legal Help to Better Understand Bail Hearing Procedures

Bail issues are just the first set of hurdles a person accused of a crime will face. Contact a local criminal defense attorney today to understand more about bail and the consequences of violating the conditions of bail.​