When a court holds a bail hearing, it determines how much bail applies to a specific case. Courts do not always have to allow bail, and can deny it if allowed by state law.
When the court determines bail amounts or whether to deny bail, it weighs a variety factors:
- Flight Risk. Some defendants pose a higher flight risk than others. For example, defendants who are facing sentences that impose death or long periods of incarceration may be more likely to try to flee than those facing less serious penalties.
- Community Connections. A person with strong connections to a community, such as someone who owns a local business or whose entire family is located in the area, may be less likely to flee or fail to reappear at court than someone who is merely visiting.
- Family Obligations. Courts may be more likely to impose a lesser bail amount when a defendant is responsible for the well-being of family members or other dependents.
- Income and Assets. A defendant with a lot of money or assets may not see a low bail amount as a significant deterrent, while those with few assets may be significantly affected by bail amounts outside of their resources. Similarly, a court can consider if a defendant is employed and likely to lose that employment as a result of being unable to pay bail and remaining in custody.
- Criminal and Court History. People with criminal histories – especially those with histories that involved failures to appear at court – typically have higher bond amounts than those who are in the criminal justice system for the first time. For example, if a defendant has been granted bail numerous times in the past but has always violated bail conditions or failed to appear in court, courts will typically impose much higher bail than they would for someone with no past history of failing to appear. Or, they may even deny bail entirely.
- Seriousness of the Crime. In general, a more serious crime will have a higher bail amount than a less serious crime. For example, bail for someone accused of a minor theft may be $1,000 or less, but bail for someone accused of murder could be hundreds of thousands of dollars or more.
- Public Safety. If a defendant’s release would pose a risk to health and safety of others, or to the community at large, courts typically refuse to allow bail at all. For example, a defendant charged with conspiring to commit an act of terrorism may be denied bail, as releasing that person could pose a risk to the lives of others.
In addition to determining a bail amount that a defendant must pay to be released, courts typically impose additional limitations or requirements on defendants when making a bail determination. These limitations are similar to those imposed on people found guilty of a crime and sentenced to probation. Violating bail conditions can result in police taking the defendant back into custody until trial, as well as the forfeiture of any bail paid.
The following are typical conditions of bail:
- Pretrial Check-Ins. Much like checking in with a parole or probation officer, people on bail can have to make regular check-ins with pretrial services officers. Pretrial services officers monitor defendants prior to trial to make sure they are complying with any orders or conditions imposed by the court.
- No-Contact Orders. In cases where the defendant is accused of stalking, domestic violence, making criminal threats, or other similar crimes, the court typically imposes a no-contact order. The order requires the defendant to refrain from contacting the alleged victims of the crime.
- Employment. Courts can require a defendant to maintain employment while on bail. If the defendant is unemployed, the court can require him or her to attempt to find employment while on bail.
- Travel Restrictions. Defendants on bail are typically not allowed to leave the area unless specifically allowed by the court or pretrial services officer.
- Substance Abuse. Bail conditions, especially those in cases involving drunk driving, drug possession, or other substance-abuse related offenses, typically require the defendant to refrain from using drugs and alcohol.
- Firearms Restrictions. Bail conditions may require the defendant to refrain from possessing firearms, even if the charged crimes did not involve the use of firearms.