Various factors are taken into consideration by the judge when setting the bail amount. Some of these factors include:
- Whether or not the defendant is employed and has close ties to the community, thus determining to a large extent the defendant’s flight risk
- The defendant’s past criminal record, which can also determine the likelihood of defendant committing another crime before the trial date, thus demonstrating how much of danger he poses to the community
To a great extent, however, the actual crime that is charged goes a long way in determining the amount of bail. In fact, the crime charged determines whether or not the defendant is entitled to bail in the first place.
There is no such thing as an absolute right to bail, and certain crimes that are committed argue strongly against the person who was charged from being released into the community prior to and pending the resolution of his case. These are what are called non-bailable offenses, and are determined by law, not the judge. If the crime charged is non-bailable, therefore, the judge has no choice but to refuse bail. Non-bailable offenses include offenses punishable by death or imprisonment for life. Bail also cannot be granted if the defendant was previously charged with an offense punishable by death, imprisonment for life, or if they have at least two more previous non-bailable offenses if the current charge is punishable by at least seven years. In these instances, bail should also be denied.
Specific examples of instances when bail is denied include a charge of terrorism, or when the defendant is a repeat serious offender, with previous crimes of rape, attempted rape, murder, and attempted murder.
Most of the time, however, if the defendant is charged with offenses that do not carry such stiff penalties or which are not considered serious, the defendant is entitled to bail. And as a first step towards determining the amount of bail, judges refer to a bail schedule which prescribes bail amounts for common felonies.
These bail schedules are often also available in the jail where the defendant is incarcerated. So, after a defendant is booked, he can learn what the range of his bail amount will be. The more serious the crime, the higher the bail amount. These bail schedules vary by state and are determined by the local legislative bodies.
Because these bail schedules are readily available, a defendant can post bail and be released immediately within the next 24 to 48 hours after being arrested. If there are circumstances which a defendant feels merits the lowering of the bail amount, however, he can argue this in front of the judge during his bail hearing.
At the bail hearing, the judge is guided by the bail schedule, but he also has the discretion to either raise or lower the bail amount depending on unique factors that figure into each case. For instance, if the defendant is a repeat offender, as opposed to being a first-time offender, a judge is more likely to impose a higher bail amount. If the defendant has a history of absconding or skipping out on his bail, then to prevent this from happening again, a judge may impose a higher bail amount than that set out in the bail schedule.
The latitude of discretion that a judge has in setting the bail amount is so wide that in certain instances, not only can he raise or lower the amount of bail, sometimes raising it to way beyond that set out in the bail schedule for the stated offense, he can also sometimes go the other way and decide to waive bail completely and order the release of the defendant on his own recognizance. Obviously, the judge’s personal impression of the charges and the defendant goes a long way towards how the bail amount, and any conditions that may be included in the bail, are determined.
It’s pretty obvious that one very important determining factor in bail is the severity of the crime charged. Not only does it determine whether or not a crime is bailable in the first place, but it also determines the amount of bail based on the bail schedule. The severity of the crime charged also goes a long way in how a judge ultimately decides on the defendant’s bail. A judge can waive bail, or deny it completely even when the offense is considered bailable. A judge can also raise the amount of bail as high as he feels the defendant deserves given the unique situation in each case, regardless of the constitutional prohibition against “excessive bail.” Because while the general purpose of the bail is to ensure the defendant’s appearance during his scheduled court hearings, the principles that come into play during bail hearings have evolved so that the safety of the public has also become an important factor. So, when the crime charged is considered severe, and there is sufficient evidence to show a great likelihood that the defendant committed the crime, bail will be denied if the defendant is considered a danger to the community should he be released.