Although the accused are presumed innocent until proven guilty, criminal court judges need an incentive to ensure that defendants actually show up to participate in all required court appearances. In the criminal justice system, bail is that incentive. In setting the amount, courts must also observe criminal defendants' constitutional rights as determined by the Eighth Amendment, which prohibits excessive bail.
The following is an overview of bail hearing procedures, including:
- Factors that judges consider when setting bail
- How judges determine the appropriate amount of the bond
- Conditions of release for defendants out on bail
What Is Bail?
Bail is a conditional release of the accused in exchange for money held by the court until the end of a case. If a defendant fails to show up for future court dates, a judge issues an arrest warrant, and the money remains with the court.
Defendants can also get released on their own recognizance (a written promise to return) without posting any bail money. Some jurisdictions utilize a bail schedule to determine the amount for misdemeanor and felony cases.
The standard three conditions the defendant must meet for any bail bond:
- To appear in court at future hearings and trial
- To refrain from all criminal activity
- To keep the court issuing the bond updated with any change of address
Setting bail is one of the first steps in a criminal case. It occurs at the arraignment hearing or the first appearance before a judge. As the case progresses, bail can adjust depending on the circumstances. Defendants can pay a cash bail. Alternatively, suppose a defendant cannot afford the amount of bail. In that case, their family or friends can agree to a surety bond on their behalf obtained from a bail bondsman (bail bond agent).
In that case, the defendant or their family pays a fee (typically a small percentage of the total bail). In return, the bail bond agent pays the cash bond to the court. If the defendant fails to appear, they forfeit the cash or other collateral put up to secure their release, such as a car, jewelry, or real property (e.g., a real estate lien against an accused person's home or other property).
In some states, bail bond agents are integral to the procedure. In other states, they're outlawed entirely, including:
What Factors Do Judges Consider When Setting Bail?
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 based on their criminal charges (e.g., capital crimes, violent offenses, sex offenses).
In criminal law, there are four basic objectives that judges have in mind during the bail hearing:
- Minimize risk to the community
- Protect the integrity of the judicial process
- Ensure the defendant appears in court
- Reduce the likelihood that the defendant will commit new crimes
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 (e.g., misdemeanor or felony domestic violence)
- The defendant's criminal record (first-time or repeat offender)
- The defendant's history of appearances at prior court proceedings
- Family ties and length of residence in the community (flight risk)
- Employment or financial resources (nature and value of any property offered as collateral)
- Medical conditions or history relating to drug and alcohol abuse
Assessing Risk to the Community
The court will hear brief arguments from both sides before deciding bail. The prosecutor will highlight the basic facts and circumstances of the current charges to underscore why detention is necessary. The defense will highlight the defendant's favorable characteristics to show why they are not a risk to public safety, such as having no prior offenses.
Suppose the judge finds that a particular defendant could reasonably threaten the community's safety. In that case, that defendant might be held without bail until trial.
In federal courts, the law favors allowing defendants in federal criminal cases to get released on personal recognizance or with unsecured appearance bonds if they're determined to pose no risk of flight and no danger to the community. However, certain types of charges — including those involving drugs or firearms — automatically carry a legal presumption of risk attached to the defendant.
Conditions of Release for Bail
Judges can impose measures to reasonably assure appearances or protect the community. State and federal laws allow for several conditions, including but not limited to the following:
- Limiting out-of-state travel (e.g., surrendering a passport)
- Mandating that a defendant seek or maintain employment
- Ordering a defendant to refrain from excessive use of alcohol or any use of narcotic drugs
- Requiring random drug and alcohol testing
- Ordering a defendant to undergo medical, psychiatric, or psychological treatment
- Requiring them to start or maintain an educational program
- Placing a defendant under a curfew
- Requiring them to remain in the custody of a designated person
- Mandating periodic check-ins with law enforcement officers or probation officers
- Restricting the possession of a firearm or other dangerous weapon
- Barring contact with the crime victim or others designated by the court
- Asking the defendant to agree to other reasonable conditions the court may impose to ensure their appearance
Can You Change or Appeal a Bail Decision?
Jurisdictions may vary in their criminal procedures, but generally, you can apply for bail if there has been a change in circumstance since the last hearing. In Colorado, for example, if a trial has not commenced within 90 days from the date the initial bail was denied, and the delay is not due to the defense, the court must schedule a bail hearing.
The defendant or the government may appeal a bail decision, though the practice varies among states. Suppose a prosecutor or defendant wishes to appeal the initial bail decision to a higher court (court of appeals or state supreme court). In that case, the appeal will be narrow in scope (e.g., a high or excessive bail amount).
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.
What Happens If I Violate Conditions of Bail?
A prosecutor may file a motion for a revocation of bail if a defendant has violated the bail conditions or missed a court appearance. A review of that bail will often occur in the same court as the original bail order. A criminal defense lawyer can advocate that the violation was not willful or intentional or provide other good cause. If a defendant is found to have violated the bail conditions, they often face lengthy pretrial detention.
According to the Center for American Progress, 3 out of 5 people sitting in U.S. jails have not been convicted of a criminal offense. They are in jail because they are too poor to post the full amount of bail. A national movement has begun to reform bail in America after recognizing the disproportionate impact of bail requirements on the indigent (poor) and people of color.
Longer pretrial detention severely affects defendants before they have their proverbial "day in court." Some defendants may spend several weeks or months in jail before ever appearing for a jury trial. This leads to a loss of employment and housing and disrupts families. As a result, some defendants are more likely to accept a plea agreement rather than wait in jail till their trial date.
Reform advocates want to make communities safer while minimizing pretrial jail time and saving taxpayer dollars. They suggest starting from the presumption of innocence and favoring pretrial release. District attorneys must prove the need for pretrial detention, and it's limited to those accused of serious offenses that endanger the community. For example, Washington, D.C., reported after instituting reforms that 94% of defendants got released without bail, and 91% of those appeared at their court proceedings.
Courts also are adding services that help defendants make their court appearances, such as:
- Flexible scheduling
- Electronic court date reminders
- Help with transport through vouchers and probation
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.