What is Bail and How Does it Work?

Bail is property or money that is giving for security of a person’s appearance at court after being released from custody. The Eighth Amendment says that “excessive bail shall not be required…” However, the courts have held that Eighth Amendment did not guarantee bail in all cases. The Eighth Amendment was intended to prevent bail that was excessively higher than reasonably necessary to secure the defendants presence at trial or citizen safety, or regulating parole. Therefore, there are different instances where the court may hold a person in custody without bail until it is time for them to appear in court. The Bail Reform Act of 1984 made this change in the courts regarding denial of bail. Before, it was thought that bail should be granted unless the case involved murder or other serious crimes.

The Bail Reform Act of 1984 which is found at 18 U.S.C.A. § 3141 states two factors for determining bail: (1) flight risk and (2) danger to the community. The Bail Reform Act has been determined by the courts to not violate the Due Process Clause of the 5th Amendment or the excessive bail requirement in the 8th Amendment. Both of these factors do not have to present for a court to deny bail. After a hearing is held to determine whether bail should be issued or not, the judge can order the person to be detained prior to trial if there is no finding that no condition or combination of conditions can assure the persons appearance as required and there is no assurance of the safety to another person and the community.

Some of the factors the court considers in setting bail include: (1) the seriousness of the offense; (2) the punishment the defendant faces; (3) the defendant’s prior criminal record; (4) the defendant’s ties to the community; (5) the defendant’s character; (6) the defendant’s financial status; and (7) any other information relevant to its determination of whether the defendant is a flight risk or poses a future risk to the community.

The granting of bail is within the listening courts discretion. If the judge decides to deny bail, it is not an issue that will be reviewed by another court. The defendant may bring a motion for a new bail hearing; however, it must be based on new information that was not present to the defendant at the previous hearing. If new information is provided, the court may entertain a motion to supersede the previous bail status. The determination is still based on the same factors set out above.

Bail pending appeal is a unique issue that will vary from state to state. Some states apply the same standard in granting or denying pending appeal as in relation to bail pending trial. On the other hands, some states may only grant the defendant bail during an appeal if they were eligible for bail during the trial.

Bail is not a right of any defendants. A person can be held without bail based on sufficient findings by the court. The only right to bail is the right against excessive bail.


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