What is Bail?

When you’re arrested, the court will either remand you to jail until your court date, release you on your own recognizance, or they will set a bail amount, which is a specific amount of money that you need to pay to the court to ensure that you will appear at any future court dates.

The Eighth Amendment to the Constitution states that bail shall not be excessive, nor shall it be used as a main way to make money for the government.  It is also not to be a form of punishment, merely for a way to get a person out of jail and motivated to appear at pending court dates.

The amount of the bail, or whether to allow bail to be posted at all, is determined by the court by looking at several factors such as:

  • The jurisdiction’s bail schedule. Typically there is a standard bail schedule for each crime depending on the jurisdiction where the crime took place.  This schedule makes a recommendation of a bail amount for each crime.
  • Criminal record.  Are there violent or serious crimes on the defendant’s criminal record?  If so, he may be considered a risk to society and remanded to jail.
  • The nature of the crime.  What is its severity? For the most severe crimes, bail may be denied or set especially high.
  • Potential penalty of the charged offense.  If the defendant is facing a capital sentence or life in prison without the possibility of parole, he may feel as though he has nothing to lose by fleeing the jurisdiction, state or country.
  • Family ties.  Does the defendant have close family ties in the community?  Those defendants with ties to family in the community are less likely to flee.
  • Employment history, length of residency and reputation in the community.   Again, close ties to an area decrease the inclination to flee.
  • Previous “failure to appear” orders.  If there is a history of the defendant not appearing at his scheduled court appearances, the court may assume that he will only repeat it and deny bail.
  • History of mental illness and substance abuse.  A mental evaluation may be requested before the decision for bail.  If there is a history of substance abuse or drugs were a factor in the crime, completion of a drug treatment program may be a condition of bail.
  • Known aliases or false ID’s.  These may make it easier for the defendant to flee.
  • Whether or not the defendant is currently on bail for another crime or has any outstanding warrants.
  • Whether or not the defendant is currently on parole or pending appeal of a criminal conviction.
  • The defendant’s wealth.  If the defendant is wealthy, bail may not be as much of an incentive to show up for court appearances and could make it easier for the defendant to flee the country.
  • The Risk to Public Safety.  The court looks at whether or not the defendant will pose a risk to the public at large.  Some jurisdictions are not allowed to consider this, but most still can.
  • Nation of origin.  If the defendant is from another country, he or she may attempt to return there.

The bail system is meant to be unbiased and begins by looking at the standard bail schedule, which is made up of standards set by the state or jurisdiction for each crime, and the court may choose to customize it to fit the individual circumstance of the defendant.  More and more courts are relying on a mathematical algorithm that uses many of the same factors that a court does to assess the risk that the defendant will appear in court or will commit another crime.  It is meant to not only streamline the bail process but to also take out any biases towards defendants or to specific crimes.  This is not a computer making the decision on bail, however, it is merely a recommendation, as is the bail schedule, to the court which has the final decision.

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