Though the final decision about whether bail release is available to an arrestee almost always rests with a judge, there are certain charges for which release may be all but impossible to secure, regardless of how high bail could theoretically be set. In these cases, which are usually associated with serious crimes, detention will be imposed until the trial. These cases represent only a small proportion of the total number of people who pass through the criminal justice system, and most jurisdictions lean towards releasing people if possible during the pretrial period.
It’s Usually Violent Crimes
In most cases, felony charges that are either violent in nature or involve large quantities of drugs and their distribution, are most likely to result in a refusal to allow bail, either by statute or at the discretion of the presiding judge. This will almost always apply in cases of a murder or kidnapping charge, or possession of large volumes of illicit drugs. This situation may also apply if the arrestee has a history of violent acts.
A judge considers a whole range of factors and when considering release, whether on bail or on a signature bond. Ultimately, the two main criteria tend to be related to whether the judge considers the person likely to cause harm to anyone, or how likely they believe the person will skip their court hearings. Setting a higher bail may be able to prevent no-shows, but being a perceived danger to society will almost always result in someone remaining in detention. However, criminal history (or lack of it) and other personal characteristics can mitigate these factors.
There are cases in which a person who is considered a danger to a particular person (often in a domestic situation) rather than the community in general may be able to make the case that release in addition to a restraining order is sufficient. However, every situation is different, and while more common non-violent charges may allow for the use of a bail schedule, the more serious the crime, the more information a judge will rely on to make their decision.
The Vast Majority of Arrests Result in Bail Being Offered
It is estimated that as many as 95% of all arrests that lead to charges being laid and a subsequent trial will include the opportunity for release, whether on bail or other mechanism. For most people who live paycheck to paycheck, even bail that’s set relatively low may still be prohibitively expensive and have too great an impact on the family finances. In these cases, a bail bondsman can secure release by requiring only a portion of the set bail amount.
The System’s Intent Doesn’t Always Match Reality
Reform of the criminal justice system, including bail policies and practices, is an ongoing challenge in America. There are many perspectives on the purpose and the practice of bail, and particularly how fair or not a system that allows people with financial resources to secure release when others don’t. In this regard, the presence of bail bondsmen restores some balance by providing a pathway to release for those that would not otherwise be able to afford it.
A major step forward for the practice of bail release came through the Bail Reform Act of 1984, which required that courts may only detain arrestees charged with certain serious felonies if there are no reasonable conditions for release that will ensure community safety. This requirement pushes the court system to look for opportunities to make pretrial release available, and prevents courts from applying pretrial detention as punishment ahead of a trial’s findings. The Act provides options for detainees to be made aware of the reasons and evidence for a denial of release, and there are mechanisms to have any decision reviewed by a higher court quickly.
While these laws prevent a judge from unilaterally and unreasonably holding someone without due process, there is still the issue of bail amounts, for which a judge has a great deal of latitude to set. For some, requiring a very high bail to be posted is effectively the same thing as denying bail. Many jurisdictions are transitioning away from cash bail for this and other reasons.
The bottom line is that pretrial release is, in theory, available to almost all people charged with an offence. Whether all arrestees can take advantage of this remains an open question.