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What Factors Make Judges More Likely to Set High Bail?
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What Factors Make Judges More Likely to Set High Bail?
When a person is arrested and charged with a crime, one of the first things that happens is the judge decides whether or not to set bail, and if so, how high it should be. Bail is an amount of money defendants pay to the court in order to be released from jail while their case is pending. The purpose of bail is to ensure that defendants return for their court dates. If they miss court, they forfeit the bail money. So judges have to weigh factors like flight risk when setting bail amounts. But there’s a lot more nuance to it than just that.
Bail-setting practices vary widely between jurisdictions. Some states have laws or guidelines judges are supposed to follow, while others leave it totally up to judicial discretion. There are a few key factors that tend to make judges lean toward higher bail amounts:
Severity of Charges
Not surprisingly, defendants accused of more serious crimes typically get assigned higher bail amounts. Judges look at things like whether the charges are felonies or misdemeanors, if weapons were involved, if there was violence or injury to victims, the number of charges, etc. They want to set bail amounts high enough to deter defendants from skipping out on violent felony cases.
For example, someone charged with a non-violent misdemeanor like petty theft or public intoxication will probably get bail set at a couple hundred dollars. But someone accused of armed robbery or assault with a deadly weapon is looking at bail in the tens of thousands.
Criminal History
A defendant’s criminal record, or lack thereof, is another piece of info judges consider. People with long rap sheets tend to get higher bail set compared to first-time offenders. The logic is that defendants with extensive criminal histories are both a higher flight risk and pose more of a public safety threat if released.
So if two people are charged with the same crime, but one has multiple prior convictions and the other has a clean record, the repeat offender will likely have a much steeper bail amount.
Missed Court Dates
If a defendant has a history of missing court appearances, either for past charges or on their current case, judges will often react by jacking up their bail. Each missed court date adds to the perception the person can’t be trusted to return to court voluntarily.
Sometimes defendants miss court for reasons out of their control, like not having transportation or childcare. But judges often view it as defiance of the court’s authority. Some jurisdictions even have specific “bond forfeiture” charges they’ll stack on when someone skips court.
Safety Risk
Judges have to weigh public safety when setting bail. If they believe releasing the defendant would put specific people or the community at risk, they’ll lean toward a higher amount. Threats or witness tampering could show a defendant poses a safety risk if released.
Danger to self can also motivate judges to set higher bail, like if the defendant seems suicidal. The idea is to keep the person detained for their own protection. But civil rights advocates argue judges shouldn’t set unattainably high bail as a way to detain people who haven’t been convicted of any crime.
Financial Resources
Some jurisdictions allow judges to consider a defendant’s ability to pay when setting bail. The concern is that low-income defendants get stuck in jail pretrial just because they can’t afford even small amounts of bail. Others forbid judges from even asking about finances, arguing bail shouldn’t be punitive.
Where judges can consider ability to pay, they may set lower bail amounts for indigent defendants. But in many courts, judges ignore finances entirely and set high bail for poor defendants, knowing they can’t pay it.
Public Pressure
Judges don’t operate in a vacuum. In high-profile cases that garner media attention, they may face public pressure to set a “high enough” bail to keep the defendant detained. Even without overt pressure, judges may lean toward higher bail in prominent cases to avoid looking “soft” on crime.
This dynamic disproportionately impacts poor defendants and communities of color. Judges are human—public scrutiny impacts their decisions, sometimes resulting in punitively high bail.
Racial Bias
There are also troubling racial disparities in bail-setting. Studies consistently show judges set higher bail amounts for Black defendants compared to similar white defendants. Even when controlling for factors like charge severity, criminal history, etc., the bias persists.
Implicit racial bias likely permeates judges’ perception of Black defendants as more dangerous or more of a flight risk. And Black defendants tend to be poorer, making it harder for them to afford bail.
Judges Vary Widely
Bail setting is an imperfect science. Identical defendants with identical charges can get very different bail set depending on the judge. Some pride themselves on being tough on crime and set high bail as the norm. Others see pretrial release as a social justice issue and lean toward affordable bail.
Without clear statutory guidelines, bail-setting is largely up to individual judicial discretion. Where you land on the judge lottery can make a huge difference.
Algorithms
In response to concerns about inconsistency and bias in bail decisions, some jurisdictions have turned to risk assessment algorithms. Defendants are scored based on factors like criminal history and demographics. Proponents argue algorithms inject more objectivity into the process.
But critics point out risk assessment tools can actually reinforce racial bias. And they remove judicial discretion to consider individual circumstances. For now, algorithm recommendations are just one of many factors judges weigh when setting bail.
Wealth-Based Detention
Bail was originally intended to incentivize people to return to court, not as punishment before trial. But in practice, it often leads to long pretrial jail stays for low-income defendants who haven’t been convicted of anything.
Civil rights groups argue this wealth-based detention violates the constitutional right to due process and the presumption of innocence. Some jurisdictions have enacted reforms, like giving judges more non-monetary release options. But in much of the country, bail still equals jail for the poor.
The bottom line is that bail-setting is a complex task involving a web of factors. Charge severity and criminal history are central, but biases also creep in. And without clear standards, judicial discretion means luck of the draw.
High bail amounts have real human costs. Defendants can lose jobs, housing, custody of children, etc. while detained pretrial. And taxpayers foot the bill for housing so many pretrial detainees. There are no easy solutions, but understanding what motivates high bail is a start.