What factors influence whether bail is granted?

What Factors Influence Whether Bail is Granted?

If you’ve been arrested for a crime, one of the first things you’ll want to know is whether you can be released on bail while your case moves forward. Bail is money or property deposited with the court to secure the release of a defendant awaiting trial. So what determines whether bail will be set and in what amount?

Judges have significant discretion when setting bail, but generally consider factors like flight risk, danger to the community, and ability to pay. Understanding these key considerations can provide insight into whether you’re likely to be granted bail.

Flight Risk

A major factor judges evaluate is the risk of the defendant fleeing the jurisdiction or failing to appear in court if released. Defendants viewed as higher flight risks are less likely to be granted bail or will face higher bail amounts. Factors suggesting flight risk include:

• Strong prosecution evidence
• Serious charges and potential long sentence
• Prior failures to appear in court
• Lack of strong family/community ties
• Unstable housing or employment
• Access to resources to flee the area
• Foreign citizenship and possibility of leaving the country

Defendants with minimal flight risk are more likely to receive bail with lower or no monetary requirements.

Danger to the Community

Judges also weigh whether releasing the defendant would pose a danger to public safety or the community. Those deemed dangerous may be denied bail or have bail set at a higher amount. Factors suggesting danger include:

• Nature of the crime, especially violent offenses
• Prior criminal record, particularly violent crimes
• History of violating restraining orders
• Mental health issues or substance abuse
• Threats against or harassment of victims/witnesses
• Possession of weapons

Those posing minimal danger are more often released on their own recognizance without needing to post bail.

Ability to Pay

Importantly, judges must also weigh a defendant’s financial resources and ability to pay when setting bail. Bail cannot be set so high as to result in pretrial detention solely due to a defendant’s poverty. Factors considered include:

• Employment status and income
• Other debts and expenses
• Whether someone can post bail on the defendant’s behalf
• Eligibility for a public defender

Those unable to afford bail may have the amount lowered or released on non-monetary conditions.

Nature of the Charges

Not surprisingly, defendants charged with more serious crimes often face higher bail or detention without bail. Factors include:

• Class of felony or misdemeanor
• Whether the crime involved violence
• Minimum and maximum potential sentences
• Whether weapons were used

Those facing minor charges are much more likely to be granted bail than serious felony defendants.

Defendant’s Background

A defendant’s background can also sway bail decisions. Relevant factors include:

• Family ties to the area
• Employment history
• Length of residence in the community
• Criminal record and compliance with past release conditions
• History of drug/alcohol abuse or mental illness

Those with substantial community ties and minimal criminal history are often seen as lower flight risks.

Evidence Against the Defendant

The apparent strength of the prosecution’s case can affect bail as well. Key considerations include:

• Statements by witnesses or co-defendants
• Physical, forensic, and digital evidence
• Anticipated challenges to evidence collection and admissibility
• Availability and credibility of witnesses

Strong prosecution evidence may motivate a defendant to flee, influencing bail decisions.

Victim and Public Safety

Concerns for victim and public safety can also impact bail determinations. Relevant factors include:

• Whether the defendant poses a threat to victims/witnesses
• Risk of intimidation or tampering with evidence
• Input from victims about release concerns
• Danger to the larger community if released

Those posing safety risks may be detained or have bail denied entirely.

Alternatives to Monetary Bail

Rather than monetary bail, judges may consider alternatives like:

• Release on own recognizance – Released without needing to post bail, often with pretrial supervision.
• Pretrial supervision – Periodic check-ins with pretrial services agency.
• Electronic monitoring – Ankle bracelet monitors location and alcohol use.
• Travel restrictions – Only permitted travel to certain locations like work/school.
• Home detention – Remain in your residence except for approved reasons.

These alternatives avoid keeping defendants jailed pretrial only due to inability to pay bail.

The Bail Hearing

Bail is typically set at a hearing shortly after arrest. Both the prosecution and defense can present information relevant to the bail factors. As the defendant, key rights include:

• Opportunity to testify about your financial resources, community ties, and intention to appear in court.
• Right to present witnesses to testify on your behalf.
• Right to cross-examine prosecution witnesses.
• Right to appeal if bail is unreasonably high.

An experienced criminal defense lawyer can advocate for the most favorable bail outcome possible at your hearing.

Seeking a Bail Reduction

If bail is set higher than you can afford, your attorney can file a motion seeking bail reduction or alternative release conditions. Factors argued may include:

• You pose minimal flight/safety risks based on your history and offense.
• You have strong family/community ties and stable housing/employment.
• You are unable to raise the funds required to post bail as currently set.
• Non-monetary conditions like electronic monitoring could reasonably assure your appearance.

Presenting evidence on these points may convince a judge to lower your bail to an affordable amount.

Violating Bail Conditions

If you are released on bail, complying with all conditions is critical. Violations like missing court, tampering with witnesses, or committing new offenses can result in bail revocation and pretrial detention.

The Bottom Line

While judges have broad discretion, factors like flight risk, criminal charges, community ties, and finances allow predicting the likelihood of bail. An experienced criminal lawyer can help secure the most favorable bail outcome possible.

References

• Factors Judges Consider When Setting Bail
• Release on Bail Pending Criminal Proceedings
• How Judges Decide Whether to Set Money Bail
• How Judges Set Bail Amounts
• California Bail Hearings