What Factors Determine the Amount of Bail?

Most states have statutes, rules, or bail schedules (if not all three) that guide judges in setting bail. The overriding consideration, though, is balancing the interests of the public against the rights of the defendant. (For all kinds of information about bail, see Bailing Out of Jail. Also see Release on Your Own Recognizance, or "OR.")

Nature and Circumstances of the Offense. Courts generally consider the nature and circumstances of the alleged crime, including the potential punishment. The theory is that the more serious the offense, the likelier it is that the defendant will skip town. Courts may also consider the apparent strength of the evidence against the defendant.

Personal Situation. Courts also evaluate factors like the defendant’s:

  • age
  • physical and mental health
  • connections to the community (including family)
  • character (including what responsible community members have to say)
  • employment history, and
  • financial circumstances.

SETTING BAIL BY ALGORITHM

In recent years, courts have started using math to inform decisions about pretrial release. In these jurisdictions, select information about the defendant is entered into a program and a score or recommendation comes out. These bail algorithms, which consider factors like age and criminal history, are supposed to assess the risk that the defendant will commit another crime or fail to appear in court.

For more on the topic, see Algorithms to Set Bail.

Judges also look at the defendant’s criminal record on the one hand, and on the other, his or her record of showing up for court while previous cases have been pending.

In short, the court will consider all factors personal to the defendant that indicate what bail is reasonable and whether she will likely return to court when required. A judge will also consider whether the defendant may pose a danger to others.

A knowledgeable criminal defense attorney can advise the defendant and her family of the ways to improve chances at reasonable bail.

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