The bail system in America has come under scrutiny of late. Some people complain that wealthy people can get out on bail even if they committed a serious crime, while an indigent person may sit in jail for months (or years) on minor criminal charges.
Of course, nobody wants potentially dangerous criminals walking the streets. Plus, we want to ensure that defendants don’t flee the area after committing a heinous crime. Unfortunately, many innocent people languish in jail for no other reason than that they can’t afford bail.
Even the Department of Justice agrees that pre-trial bail schedules that imprison poor people for not being able to afford bail violate the 14th Amendment of the U.S. Constitution.
This begs the question: Can your criminal defense attorney convince a judge to reduce bail if you can’t afford it?
Why Do We Have Bail in the First Place?
The criminal courts utilize a bail system to ensure that defendants don’t flee the jurisdiction pending trial. Obviously, the more heinous the crime, the more critical it is that the suspect stay put.
Another argument for setting bail is that it keeps dangerous offenders off the street while awaiting trial. While this may give citizens peace of mind, it also means that people who cannot afford bail stay in jail while other wealthier defendants walk free.
Setting Bail Amounts
Some states have statutory guidelines for setting bail amounts. In others, judges have broad discretion to set bail amounts, generally in proportion to the nature of the crime, the defendant's criminal history, and whether they are a flight risk. This discretion allows a judge to set bail very high or to deny bail altogether.
Judges consider a number of factors when setting bail:
- Bail schedules
- The severity of the crime
- The defendant’s prior criminal record and outstanding warrants
- The risk to public safety
- The defendant's ties to the community
- The probability of the defendant showing up for their court appearances
- The defendant’s potential flight risk
After considering these factors, the judge will decide whether to set high bail, no bail or release the criminal defendant on their own recognizance.
Defense Counsel Can Challenge Bail Amounts
Depending on the judge's reason for setting bail (or not setting bail), your defense attorney can challenge their decision. This isn't easy, especially in jurisdictions where the judge has broad discretion.
Imagine that, in your initial bail hearing, the judge determines that you’re a flight risk and, therefore, sets a very high bail. A defendant will rarely have the full bail amount. They may go to a bail bond agent to see if they’ll vouch for them. Or they can ask the court for a bail reduction hearing.
If the bail is excessive, you can argue that it violates your constitutional rights. The Eighth Amendment to the U.S. Constitution prohibits "excessive bail." The problem is that it does not specify how much is too much. However, the Supreme Court has held that the courts cannot use bail as a tool to keep a defendant in jail.
If you believe this is what the judge has done in your criminal case, you can challenge the bail amount. If you have an experienced criminal defense attorney, they can argue for lower bail or for the court to release you on your own recognizance.
What Are the Odds the Judge Will Reduce Bail in My Case?
Just because you request a court hearing to discuss bail doesn’t mean the judge will honor your request. They may say the amount of money the court asks for isn’t excessive. Or they may suggest that you meet with a bail bond company to see if they can help you.
Some of the arguments your criminal defense lawyer can make for reduced bail include:
- You have a family and are the sole breadwinner
- You have strong community ties
- A loved one or family member is willing to let you stay with them pending trial
- A bond reduction is fair, given the nature of the alleged crime
If the judge is unwilling to reduce the amount of bail or bond amount, your only option is to come up with the money somehow. Of course, the other option is to sit in jail until trial - something nobody wants to do.
Having a Skilled Criminal Defense Attorney Can Help
Getting a bail reduction is sometimes easier if you have an experienced attorney. They know the court rules and have a working relationship with the prosecutor handling your case. They also know how likely the judge is to grant your request, given their history.
If you’re facing criminal charges and worry that you won’t be able to post bail, you should seek legal advice immediately.
- Find Criminal Defense Lawyers Near You (FindLaw's Legal Directory)
- Getting Out of Jail after You Have Been Arrested (FindLaw's Learn About the Law)
- Bail Hearing Procedures (FindLaw's Learn About the Law)
