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Bail Factors

The purpose of bail is to secure a defendant's appearance in court and safeguard the public. There are a variety of issues that affect bail, including the severity of the crime and the defendant's character. A judge can specify whether bail must be paid in cash or by bail bond — usually the judge will allow for either one.

It is in the defendant's best interest to be released as quickly as possible so that he/she can return to work and family as well as assist with the preparation of his/her defense. If you or a loved one has been arrested, you want to have a bail attorney fighting for you.

Bail in a Civil Case?

Normally, parties to a civil action (i.e., plaintiff, defendant) are not taken into custody, so there is no need for a bail hearing. Nonetheless, it is possible to have a defendant in a civil action arrested if there is a danger he/she will flee the jurisdiction or attempt to hide or dispose of assets. Just as in a criminal case, bail is meant to secure a defendant's presence at trial. The other consideration in setting bail for a civil case is the anticipated damage award. To learn more, speak to a bail attorney.

Factors That Affect Bail

Bail is based on a preset schedule or set by a judge at a bail hearing. Ultimately, the judge will exercise his/her discretion when making a bail determination. Factors the judge will consider include:

  • Nature of the crime(s). The seriousness of the crime and the weight of the evidence are paramount. Bail tends to be high or might even be denied when a defendant is charged with a serious and/or violent crime.
  • Community Ties. A defendant with strong, long-term ties to the community (e.g., long-term residence, employment, family and friends) is considered less likely to flee. An experienced attorney will call witnesses to establish these ties and to testify to the defendant's good character.
  • Financial Position. The court will consider how the defendant's financial position will affect his/her ability to flee. Bail will likely be higher for a wealthy defendant than another defendant with lesser means charged with the same crime.
  • Criminal Record. If the defendant has a history of criminal activity, failure to appear in court, or flight from prosecution, he/she is less likely to be released on bail.
  • Physical and Mental Condition. The court may consider whether the defendant's physical and mental condition presents a danger to the public or enhances or inhibits his ability to flee. On the flip side, the judge will also consider whether incarceration will exacerbate a physical or mental condition.

Preparing To Meet Your Bail Lawyer

Prior to meeting with your attorney, it is helpful to gather key information (including any supporting documentation) for your attorney, including:

  • Residence information
  • Family obligations
  • Employment
  • Medical condition
  • Prior criminal record

You should also make a list of people who you think would be willing to testify on your behalf. Time is of the essence — the more prepared you are, the faster you may be released on bail.

If the judge thinks the defendant has a good reputation and is likely to return to court for trial without the financial motivation of bail, he may agree to release the defendant on his or her own recognizance (ROR), especially for minor crimes.

Conditional Release

Judges sometimes grant "conditional release" to defendants they deem to be dangerous or a flight risk. Examples of requirements for conditional release include:

  • Surrendering driver's license and/or passport
  • House arrest
  • Curfew
  • Alcohol and drug monitoring (e.g., SCRAM device)
  • Medical or psychiatric treatment
  • No guns
  • Release from custody during working hours only
  • Release into the care and supervision of a designated third party

Just as bail cannot be excessive, conditions of release are limited to what is reasonably necessary to ensure the defendant's return to court and to protect the public. Since the conditions of release are supposed to help ensure the defendant's return to court, the amount of bail that must be posted by the defendant or bail bondsmen is often lower than a release without conditions. Speak to a bail attorney to learn more about conditional release.

Bail Lawyer

Bail is not meant to punish the defendant, so bail cost should not be excessive. If the judge sets bail beyond what is reasonably necessary to ensure the defendant will return to court and to protect the victim and the public, then it may violate that person's constitutional right against excessive bail. If you or a loved one has been charged with a crime, contact a lawyer to make sure your rights are protected.

[Last revision: June 14, 2011]