7 Key Factors in Setting Bail
Judges typically set bail -- the amount a defendant must pay to be released from custody pending trial -- during the first court appearance following an arrest. So what factors go into setting bail?
A judge typically has a few options in setting bail: He or she can stick to the standard bail amount, raise or lower the standard bail, deny bail altogether, waive bail and grant release on the defendant's "own recognizance," and/or set special conditions for release.
Every case is different, but in general, here are seven factors that a judge will often consider in setting bail:
- Posted bail schedules. Bail is often set based on a standard bail schedule, which aligns specific crimes with a specified bail amount. This amount will differ by jurisdiction. To pay less than the bail schedule amount, a defendant must go before a judge.
- The seriousness of the alleged crime. In general, the more serious the crime, the more serious the bail setting. Unfortunately for defendants hoping for a low amount, police typically arrest suspects for the most serious charge the facts can possibly support.
- Past criminal record/outstanding warrants. A defendant with a substantial criminal record will face higher bail amounts. In addition, a judge may deny bail altogether to a defendant who has an outstanding warrant in another jurisdiction, in order to keep the defendant in custody.
- The defendant's ties to the community. As one Minnesota judge explained in the Stillwater Gazette, "those who are well invested in a community are known to be lesser risks to flee, endanger others, or commit more crimes." Strong ties to relatives or a community weigh in favor of a more lenient bail requirement.
- The probability of defendant making it to court appearances. Courts generally require higher bail settings for those with a history of missing court hearings.
- The risk to public safety. In setting bail, the court examines the nature and seriousness of danger to others in the community and to themselves.
- Potential flight risk. Defendants who the court determines are likely to flee the jurisdiction before the case concludes -- especially those who were apprehended while on the run from law enforcement -- will face higher bail settings or may even have bail denied altogether.
Because setting bail relies heavily on the circumstances of a particular case, you'll want to consult an experienced criminal defense attorney in your area to evaluate the factors as applied to your particular situation.