How Bail is Set

Learn the process of setting bail, what it entails, and how to apply the information for the better.

Bail bonds and the idea of posting bail for a loved one can seem somewhat intimidating, confusing, or even overwhelming at times. However, bail was written into our US Constitution for very just reasons. Bail was established and put into place to ensure that justice would be served for all victims, and also takes into account the unjust idea of holding someone in jail for any amount of time pretrial and before anyone knows whether or not the arrestee is guilty or not. Unfortunately there are people who abuse the criminal justice system and use it as a means of revenge or retaliation. Because of this, it makes it difficult to choose whether or not to deny bail based on a police report alone. It's just not that easy.

In many areas of the country, defendants can post bail with the police even before they are brought to court for a bail hearing or an arraignment. When authorities arrest and take a suspect into custody, they typically set bail according to a bail schedule which specify bail amounts for common crimes. An arrested defendant can obtain release immediately after booking by paying the amount of bail set forth in the jailhouse bail schedule. Bail schedules can vary considerably according to locality, type of crime, and residency. The more serious and dangerous the crime, the higher the amount of bail is likely to be. There's no discretion involved—the agency holding the suspect (oftentimes a sheriff's department) simply sets bail at the amount designated for the alleged crimes committed. For an example, see this California Bail Schedule. Bail Schedules were put into place to ensure everyone has the immediate ability to be released from custody pretrial.

If the suspect—or, more likely, a friend or family member—can afford bail and posts it, temporary freedom awaits. But bail can be expensive, even through a bondsman. That's why many defendants will wait for arraignment in order to ask the court to either lower bail or grant own recognizance or OR release.

"Our Constitution requires that the accused be presumed innocent before trial, thus granting all citizens the right to a bail hearing, where the accused has the opportunity to be represented by counsel, present evidence, and cross-examine witnesses."

Due to the fact that bail schedules do not take anything into consideration other then the alleged crimes committed, bail hearings allow for a more fair evaluation of the situation. It also provides a defendant an opportunity to hear and respond to the government's accusations at a hearing that is open to the public.

Bail Hearings

Judges ordinarily set a bail amount at a suspect's first court appearance after an arrest, which may be either a bail hearing or an arraignment. Judges normally adhere to standard practices (for example, setting bail in the amount of $10,000 for all ). However, judges can raise or lower the standard bail, or waive bail altogether and grant release on O.R., based on the circumstances of an individual case.

In addition to the seriousness of the charged crime, the amount of bail usually depends on factors such as a defendant's past criminal record, whether a defendant is employed, whether a defendant has close ties to relatives and the community, whether they may be a flight risk, the probability the defendant will reoffend, and whether or not they pose a serious risk to the safety of the people in that community.

The issue at a bail hearing isn't the defendant's guilt or innocence, but rather the likelihood that he or she will behave properly and return to court as necessary if released. Generally, the court may consider the apparent weight of the evidence against the accused. But this isn't the primary consideration, and the judge isn't normally supposed to make findings about the facts underlying the case at this time.

How To Apply This

At Joanna's Bail Bonds we like to inform our clients of the options they have at their disposal. Because bail can place a huge burden on a family sometimes it just isn't reasonable to post bail for someone's release. Sometimes the best thing to do is wait for arraignment and ask the judge to be released on OR, and if denied, then ask for a bail reduction. In most cases, the judge will grant one or the other. However, there are also instances were people cannot wait for their arraignment to be released. They have obligations to their family, job, or other pertinent factors for which they cannot wait. In this situation, bail is the best, and usually only way, to secure someone's release from custody immediately.