The purpose of bail is to make sure the defendant shows up at scheduled court hearings. Of course, by the time a defendant is thinking about future court dates, they’ve more than likely already been through one of them – the bail hearing itself.
What happens at a bail hearing?
With the exception of some jurisdictions that employ a bail schedule to more efficiently process common arrests, the bail hearing is held in front of a judge (or similar authorized individual) with charges being presented by a prosecutor. The prosecutor makes recommendations to the judge on whether they believe the defendant should be considered for bail, and may include a recommendation for the amount of bail that should be set. The defendant, or a lawyer representing the defendant, may be asked to weigh in with any other relevant information, and the judge will then take all information into account and make a determination of the type and amount of bail.
While most people think of bail simply as an amount of money that needs to be provided to the court system to ensure future appearances following release from detention, there are some variations available to the judge. Should the defendant be charged with a relatively minor offense, and is considered highly likely to comply with trial requirements, bail may take the form of a signed promise to appear, perhaps with cash bail triggered by any violation of the release conditions. Some jurisdictions can accept bail in the form of property rather than cash.
How bail amounts are determined
While there are well known court systems that are known for rapid processing of defendants with little scope for consideration (usually due to severely limited court resources), a defendant can generally expect to be given the opportunity to present information and arguments that may influence a judges bail determination. These questions typically fall into the following categories:
Nature and seriousness of the charges
This is probably the most important factor in determining bail levels, since the seriousness of the crime has a direct impact on the likely prison sentence in the event of a guilty finding, and therefore a greater incentive for a defendant to avoid court appearances. Higher bail amounts are likely to be applied in the case of drug-related or violent crimes, or situations where there is a perceived threat to the community.
Existing warrants that are discovered for crimes previously committed can weigh heavily on a judge’s decision about bail. This is because the existence of these warrants is an indication of the defendant’s unwillingness to comply with court decisions or law enforcement requirements. And while cash bail is intended to provide suitable incentives for defendants to appear at future court dates, the release of a defendant still requires a level of trust that they will cooperate and appear as required. Unresolved warrants undermine that trust substantially.
In cases where the warrant is from another jurisdiction, representatives of that jurisdiction may be provided with an opportunity to participate in the bail hearing process, which may require a delay in determining bail.
This is where the defendant starts to get an opportunity to make a case for release. The defendant will often be asked to describe what family there is in the community, and whether the defendant plans on staying with them through the court proceedings. Having a strong network of family to support the defendant through this time can be a helpful argument, and knowing that there are people who rely on and who will hold accountable the defendant may be important factors in allowing release.
Having a job, particularly with some history, is a critical factor in bail determination. The defendant will be asked to describe the nature of their current job (hours, salary, responsibilities, etc.) as well as prior employment.
Assets and property
Particularly in cases of more serious charges, a defendant’s assets, and the nature of those assets, may be inquired about. Firstly, the presence of assets that are not “liquid” (i.e. the can’t be easily moved around or exchanged for cash) indicates a higher likelihood that the defendant will remain and comply with court proceedings. Secondly, the defendant may be required, or given the option, to provide some of those assets as collateral to fulfill bail.
Past criminal history
First-time offenders will almost always be given more leniency, and be granted lower bail, than repeat offenders that have a criminal history. While the judge is likely to have all relevant information about past charges, which they may use to test the honesty and forthrightness of a defendant, they may also provide an opportunity for the defendant to provide context and further explanations about the circumstances of that history.
Whether it goes to character, or a judge’s opinion about whether the defendant is likely to be sufficiently competent to attend required future court dates, current and past alcohol and drug dependencies may be factors in determining bail conditions and amounts.