Convincing a Judge to Lower the Initial Bail

Judges want to know about the defendant, including potential danger to the community and likelihood of coming to court.

The law and procedure around pretrial release vary at least somewhat from state to state, but here are some of the factors defense attorneys regularly address when trying to get lower or no bail for a client:

  • Danger to the community. The lawyer essentially argues that the defendant won't hurt anyone while out of custody. Obviously, this argument tends to be more available to defendants charged with nonviolent crimes.
  • Criminal record. The attorney will often try to present any past experiences with the criminal justice system in the light most favorable to the client. If the client has no record, the attorney will certainly emphasize as much. If the defendant has had prior cases, the lawyer will typically stress (to the extent possible) that the client made all required appearances associated with the charges.
  • Ties to the community. The defendant's connection to the community is another important factor. For example, having strong local family ties and a job tends to weigh in the defendant's favor. (Judges are often impressed when family members and an employer personally appear to support a defendant at a bail hearing.)

(For more on these issues, see How Judges Set Bail and Algorithms to Set Bail.) 

Suspects typically benefit from legal representation at a bail hearing. Experienced attorneys know the factors that particular judges find important when considering a request for lowered bail or O.R. release. In addition, attorneys normally discuss cases with prosecutors before the bail hearing, and sometimes can assure the judge that the charges are not as serious as they look on paper. Finally, the simple truth is that judges often take attorneys’ arguments more seriously than those of self-represented defendants.

Also consider that judges can always reconsider bail, and may lower bail when they receive information—from an attorney—that they were previously unaware of. (For further information, see Can you appeal a judge's bail order?)

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