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Can You Get a Judge to Reduce Bail?

The American bail system has come under an increasing amount of scrutiny lately. Of course we don't want potentially dangerous criminals in public and we want to make sure defendants stick around for their criminal trials. But too often innocent people languish in jail for no reason other than they cannot afford their bail. Even the Department of Justice argued that pre-trial bail schedules that imprison poor people for not being able to afford bail are unconstitutional.

So if you think your bail is too high, or you're facing jail time just because you can't afford your bail, can you get a judge to reduce it?

Setting Bail Amounts

Some states have statutory guidelines setting bail amounts for certain crimes. In others, judges are given wide discretion to set bail amounts, generally in proportion with the nature of the crime, the defendant's criminal history, and whether he or she is flight risk. This discretion allows a judge to set no bail at all or make it very expensive.

There are generally seven factors that a judge will consider in setting bail:

  1. Posted bail schedules
  2. The seriousness of the alleged crime
  3. Past criminal record/outstanding warrants
  4. The risk to public safety
  5. The defendant's ties to the community
  6. The probability of defendant making it to court appearances
  7. The potential flight risk

Challenging Bail Amounts

Many of those are soft factors, up for debate between your defense attorney and the judge. So if a judge during your initial bail hearing concludes you're likely to flee before trial, it may be possible to provide evidence to the contrary, touting your strong ties the local community, for example.

There may also be some constitutional arguments you can make when challenging your bail amount. The Eighth Amendment prohibits "excessive bail," and while the Constitution doesn't specifically define what amount constitutes excessive, the Supreme Court has held that bail cannot be used as a tool to keep a defendant in jail. So bail cannot be set at price that the defendant cannot afford to pay specifically to keep him or her in jail.

After your bail has been set initially, you may have to request another hearing to challenge and review the bail amount. An experienced criminal law attorney will best help you make an argument for lower bail -- contact one today.

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