When authorities arrest and take a suspect into custody, they typically set bail according to a preestablished schedule. 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. For an example, see this California Bail Schedule. (For information about bail determination in federal court, see our article on detention hearings.)
If the suspect—or, more likely, a friend or family member—can afford bail and posts it, temporary freedom awaits. But bail can be tremendously expensive, even through a bondsman. That’s why many defendants ask the court to either lower bail or grant own-recognizance (OR) release.
Depending on the case and jurisdiction, a defendant may have a chance for a judge to change the predetermined bail amount at the initial appearance and at a later bail hearing held pursuant to a motion. The first time a judge takes up the issue of bail is often informal: Discussing the relevant bail factors, the prosecution and defense each make a quick pitch for increasing bail or keeping it as is on the one hand, and lowering it or granting OR release on the other.
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.
Some states are doing more than refining their cash bail systems—they're eliminating or seriously restricting them. States like New Jersey, which all but eradicated its conventional bail system in 2017, are instead focusing on risk assessment when making decisions about whether defendants should be in custody while charges are pending. In 2018 California enacted a law that appeared to eradicate the cash bail system, but the law later went on hold pending the November 2020 election.
Specially designated bail hearings also tend to be relatively informal. But consideration of "ex parte" evidence—evidence from only one side without the other present—is generally improper. The judge will consider argument from each side and may even choose to hear witness testimony.
Regardless of the format, the bail hearing affords a defendant an opportunity to hear and respond to the government’s presentation at a hearing that is open to the public.
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.
If you have or someone you know has been arrested and is awaiting bail, consult an experienced criminal defense attorney. That lawyer will know the workings of the local bail system, both in and out of court.
And having a lawyer argue the issue of bail is a much better option than the defendant doing so. The lawyer can also arrange for the appropriate friends, family members, and associates to come to court. For example, a lawyer might arrange with a roommate to show up and attest that the suspect has a place to stay upon release.