Getting charged with a crime – even a misdemeanor – is no small thing. Of course it matters whether you did the thing they’re accusing you of, but let’s put that aside for a moment. No matter your situation when it comes to guilt or innocence, the journey you’ll take just to get to trial will have a massive impact on your life, and you need to figure out how to protect what’s yours and what’s important to you during this period.
The things you need to protect are the things that you’ve spent a lifetime building. Your family, your reputation, your career and your assets. We’ll get to the first three items on that list in future posts, but here we’re going to consider ways that you can reduce or minimize the financial impact of being charged, particularly when it comes to bail costs.
You may think that managing the impacts of bail is something that you have no control over. After all, decisions about bail are made by a judge, whose position by definition is (in most cases) impartial. But it turns out that you have more influence than you think, even if it’s just the decisions you make along the way.
Pulled out of thin air
How does a judge determine an amount for your bail? Ignoring for the moment those cases where there is a concern about the safety of others in the community in which bail is outright denied, there actually is some procedure and predictability at play in a judge coming to a bail amount decision.
Precedent matters. This simply means that judges will look at past cases that have similarities to yours, and examine how bail was set, and whether it was effective. This gives you some sense of predictability (though not certainty) about the range in which bail amount may be set.
Bail for what is considered “petty” crime may only be a few hundred or perhaps a few thousand dollars. Given that most families in America still live paycheck to paycheck, this may still be essentially unaffordable to many, but scraping together this amount of money, particularly when it will be returned (after the defendant satisfies their requirements for court appearances) may be possible in a pinch. The more serious the crime, though, the higher the amount is likely to be set, perhaps into the tens or hundreds of thousands of dollars.
There’s no question that the vast majority of people have almost no opportunity to bring together these kinds of funds. Which is why most people in this situation will make use of the services of a bail bondsman, who will charge only a fraction of the bail amount (and secure the remainder under a collateral agreement) in order to post a bond to the court for the full bail amount and get the defendant released for pre-trial. Recognizing that for very high bail amounts, even a 10% or a 5% bail bond may be prohibitively expensive, many bail agents will work with a defendant to create a payment option they can handle.
Make your argument
Precedent matters, but it’s not the only thing. Judges are aware that there are good reasons for many defendants to be released ahead of their trail proceedings, and may be inclined to show some discretion, Defendants that are released from detention are more likely to keep their jobs before a trial, to work effectively on a defense with an attorney, to support their family and will avoid the negative impacts of jail associated with recidivism.
If bail is set too high for a defendant to have any opportunity to secure their release, even with all the assistance available through a bail bondsman, an attorney may be able to request a hearing to reconsider the amount at which bail is set.
But this is not a mere formality. This is not just about saying “pretty please” when “please” didn’t work. A robust argument must be made as to why the bail amount can be set lower and still achieve the outcomes that the courts require.
Cash bail is meant to ensure that a defendant, when released from custody, makes their necessary appearance at trial, which may be days, weeks or months in the future. If the defendant believes that they will be found guilty, they may consider the alternative of avoiding court, even at the risk of being arrested in the future through bench warrants and the like. Cash bail holds a substantial amount of the defendant’s (and most likely, their family’s) assets against this, so that the financial pain of avoiding trial (through the forfeiture of the full bail amount) is potentially greater than the pain of being found guilty, with it’s likelihood of incarceration. This is the dynamic that judges work with – they may be prepared to ratchet down the bail amount that’s set, but they do not want to push it down further than the level at which this trade-off leads to trial avoidance.
Therefore, in making an argument to the judge, the best strategy you have is to demonstrate how unlikely trial avoidance will be, based on the very high likelihood that doing so would lead to a further arrest and almost certain detention. Factors that are important here include:
- Good behavior (i.e. lack of criminal record) apart from the crime that you are accused of
- A solid and clean work history, and a career that would be severely affected by a criminal record
- Clear evidence that you are not a threat to society or have a history of violence
- Proof that the financial burden of the existing bail amount is excessive to you and your family
Your attorney will help articulate these arguments when the facts allow, and manage the process of making the argument to the judge.
Of course, the most important thing you can do to protect your assets has nothing to do with making an argument, and is only available to those that have been successful in securing their release ahead of their trial.
Attend your trial hearings as required. Failure to do this, especially if you’ve made no attempt to move or postpone proceedings in the case of a serious or unavoidable conflict, automatically means that you give up the full bail amount – whether in the form of the cash bail you’ve posted, or by forfeiting collateral to your bail bondsman.