First, what is “bail?”
Bail is usually defined as an amount of money, given to a court to secure a criminal defendant’s appearance at future court proceedings. People often hear about bail in criminal proceedings, and that “the judge set the bail at a certain amount;” but it can be hard for people without a background in legal professions to comprehend how the process actually works, and how a judge determines an appropriate bail amount.
How bail amounts are set
People without a first-hand understanding of legal proceedings may want to understand how the judge knows the amount he or she sets will ensure the defendant returns to court. Another point of interest may be what factors are involved in the bail amount determination. Thankfully, if you are one of those people with some of those questions, you found this blog!
When a judge is determining the amount at which to set a defendant’s bail, he or she takes into consideration a variety of factors and key points. Overall, the judge has the power to raise or lower potential bail amounts, depending on any or all of these factors. Some of these can include:
The nature of the crime committed and the circumstances surrounding the crime
If the crime was of a particularly violent or dangerous nature, the bail amount may be high. Judges sometimes have particular guidelines that they should follow when determining bail amounts for specific types or categories of crimes, but generally speaking, the worse the crime, the higher the bail.
The evidence against the defendant and how likely, or unlikely, it is to lead to a conviction
If there is a high amount of evidence, and a conviction seems very likely, bail may be set high, to dissuade the defendant from trying to make a run for it. The judge must use his or her best judgement to attempt to create a situation where the defendant does what they must according to the law.
The past and present conduct of the defendant.
This can include whether they have ever been convicted of a crime in the past, and whether they ever failed to appear when previously called to court. It has been said that history will repeat itself, if given the chance. The judge may not want to provide that chance if a defendant has failed to appear, previously.
The defendant’s criminal history
This often includes the chance that the defendant might be a threat to the community if they are released after their arrest. If the crime was unusually violent, the judge will almost always set bail higher, to protect the community.
The defendant’s history in their community
This can include family ties, mental state, personal or business finances, and employment history. A person with many ties to their community will generally stick close while they await their court date.
The defendant’s current criminal status.
This can be a major factor in setting bail. If the defendant is already on parole, probation, or release from another crime, those factors will heavily impact the amount at which bail is set.
The source of the defendant’s finances.
This is a factor, especially if their income appears to stem from a history of criminal activity. For example, if the defendant is arrested for selling drugs, it may be likely that their income is mainly from that “enterprise”. The judge may need to adjust bail accordingly, to ensure the defendant appears at court when they are required to do so. If the arrest is on a drug-related charge. If drugs are involved in the case, the street value of the drugs has an impact on the amount of bail. A high value of drugs generally leads to a high bail amount. This usually coincides with more serious charges against the defendant.
So, who controls bail amounts?
In general, the laws give a judge a great amount of leeway and freedom in setting bail. Judges are allowed to consider any other factors that may seem relevant to the case, above and beyond the factors we discussed in this blog. There is no real set rule or guideline, though judges sometimes follow precedent (what judges before them have done in similar cases) to set bail.
What happens once bail is set?
After the bail amount is determined, the defendant goes through a process called “booking”. During this process, the defendant is given the opportunity to post their bail (a legal term for pay or arrange payment), or arrange to have their bail posted on their behalf at a later time. Once bail is posted, the defendant will be released, and will be required to wait for the arraignment of their case (the beginning of the trial process).
What is “flight risk?”
Flight risk is used to describe a defendant who is likely to NOT show up to their future court dates if they are allowed to post bail. Defendants with a high probability of flight risk may not be released at all, or bail may be set at an extremely high amount, to ensure they do not miss their future court appearances. If a defendant skipped town before a prior court appearance, it is likely the judge will not afford them a similar opportunity again. But, if a defendant is not considered a flight risk by the judge, then the defendant completes the booking and bail processes as described above, and is released with the understanding that they are responsible for appearing in court at their assigned time in the near future.