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7 Key Factors in Setting Bail

By Aditi Mukherji, JD | Last updated on

Judges typically set bail -- the amount a defendant must pay to be released from custody pending trial -- during the first court appearance following an arrest. So what factors go into setting bail?

A judge typically has a few options in setting bail: He or she can stick to the standard bail amount, raise or lower the standard bail, deny bail altogether, waive bail and grant release on the defendant's "own recognizance," and/or set special conditions for release.

Every case is different, but in general, here are seven factors that a judge will often consider in setting bail:

  1. Posted bail schedules. Bail is often set based on a standard bail schedule, which aligns specific crimes with a specified bail amount. This amount will differ by jurisdiction. To pay less than the bail schedule amount, a defendant must go before a judge.
  2. The seriousness of the alleged crime. In general, the more serious the crime, the more serious the bail setting. Unfortunately for defendants hoping for a low amount, police typically arrest suspects for the most serious charge the facts can possibly support.
  3. Past criminal record/outstanding warrants. A defendant with a substantial criminal record will face higher bail amounts. In addition, a judge may deny bail altogether to a defendant who has an outstanding warrant in another jurisdiction, in order to keep the defendant in custody.
  4. The defendant's ties to the community. As one Minnesota judge explained in the Stillwater Gazette, "those who are well invested in a community are known to be lesser risks to flee, endanger others, or commit more crimes." Strong ties to relatives or a community weigh in favor of a more lenient bail requirement.
  5. The probability of defendant making it to court appearances. Courts generally require higher bail settings for those with a history of missing court hearings.
  6. The risk to public safety. In setting bail, the court examines the nature and seriousness of danger to others in the community and to themselves.
  7. Potential flight risk. Defendants who the court determines are likely to flee the jurisdiction before the case concludes -- especially those who were apprehended while on the run from law enforcement -- will face higher bail settings or may even have bail denied altogether.

Because setting bail relies heavily on the circumstances of a particular case, you'll want to consult an experienced criminal defense attorney in your area to evaluate the factors as applied to your particular situation.

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