When someone's arrested, whether they can get out of jail usually depends on how much the bail is. If someone can pay the full bail amount, or post a bail bond, they can get out of jail rather than remaining in custody for however long it takes to get to trial.
This article discusses in general terms how judges decide the amount of bail and how to try getting lowered. For information on bail generally, see our article Bail: Getting Out of Jail After an Arrest.
The law and procedures for getting pretrial release vary from state to state. Often, when someone is arrested, they can bail out fairly quickly by paying the amount that's listed on the jailhouse bail schedule, which sets the initial bail amount for common crimes.
But often, people can't afford that amount. In that situation, they can ask a judge to lower it at arraignment or at a separate bail reduction hearing. Assuming the judge doesn't order the defendant released on "O.R." (best case scenario), the judge will need to decide how much bail should be.
When setting the amount of bail, most judges are concerned with two main things. First and foremost, judges want to make sure that defendants aren't a "flight risk," meaning they won't skip town or otherwise fail to appear at future court dates. When defendants fail to appear without a good excuse, they can forfeit (never get back) any cash bail they paid, or could lose the collateral they put up to secure a bail bond. Theoretically, the higher the bail, the more defendants have to lose, so they're more likely to show up for court.
Judges are also concerned about whether the defendant will be a danger to the community if released. The U.S. Supreme Court has suggested (but hasn't definitely ruled) that judges can consider dangerousness in setting the bail amount unless the prosecutor's only reason for seeking high bail is to secure the defendant's presence in court. (United States v. Salerno, 481 U.S. 739, 745 (1987).)
But in some states, the judge isn't allowed to consider dangerousness when setting bail; if the defendant is potentially dangerous, that factor can be considered when setting conditions of release (such as issuing restraining orders and requiring electronic monitoring), but it's not relevant to how much the defendant should pay. (State v. Whitaker (N.M. 2018) 410 P.3d 201, 219.) Courts in these states (and many others) can deny bail altogether based on dangerousness, by issuing a detention order. But that kind of order usually requires a special hearing where the prosecutor must prove the defendant's risk by "clear and convincing" evidence.
In reality, when judges do set bail, future dangerousness plays a part in many if not most decisions about how high bail should be. Even in states where courts aren't supposed to consider it, a defendant's potential risk to others (if any) will probably be on the judge's mind as they decide the bail amount.
Although the law varies from state to state, here are some of the factors judges often consider when setting the amount of bail or a bond:
Someone who can't afford bail might have an argument that the bail is excessive. The Eighth Amendment to the U.S. Constitution states that "excessive bail" can't be imposed. Although the phrase "excessive bail" isn't defined in the Constitution, the U.S. Supreme Court has interpreted it to mean that the amount of bail can't be used as a ploy to keep a defendant in jail before trial. But the Court has also ruled that the ban on excessive bail doesn't create a right to bail, and that a judge can refuse bail when it's justified. (U.S. v. Salerno, 481 U.S. 739 (1987).)
Over the years, many states have made efforts at bail reform, so that fewer people will be incarcerated just because they can't afford bail. And as noted above, the California Supreme Court has ruled that when judges do set bail, it should be an amount the defendant can afford. Whether these developments will put an end to unaffordable bail remains to be seen, because many judges are slow to embrace the changes.
Another possible strategy when bail is unaffordable is to take another shot at a reduction. Judges can always reconsider bail, and might lower it when they receive information—ideally from an attorney—that they didn't know about before. For example, imagine an initial bail hearing where the defendant told the judge he probably didn't have a job anymore because of his arrest. The judge then denied bail in part because the defendant had insufficient ties to the community. If the defendant later learns that his boss is holding his job open for him, he could ask the court to reconsider bail based on new evidence of his ties to the community.
It's important to have legal representation at a bail hearing. Experienced, local criminal defense attorneys usually know the factors that particular judges find important at a bail reduction hearing. They often discuss the case with the prosecutor at some point before the hearing, and sometimes can assure the judge that the charges aren't as serious as they look on paper. And whether it's fair or not, judges often take attorneys' arguments more seriously than people who represent themselves. This is in part because attorneys are considered "officers of the court," which means they can get in trouble if they misrepresent anything when making arguments to the judge.