Purpose of Bail
Bail is a mechanism for ensuring that a criminal defendant released from jail shows up for trial. Typically, bail is an amount set by a court based on:
- the severity of the alleged crime
- whether the defendant poses a flight risk the defendant if released
- whether the defendant poses a risk to the community if released from jail
The Eighth Amendment to the U.S. Constitution explicitly prohibits “excessive bail.” The term “excessive bail” is not defined in the Constitution and the Supreme Court has weighed in on what it means, holding that bail cannot be set so high as to be a ploy to force a defendant to remain in jail. But, the Court has also ruled that the Eighth Amendment’s bar on excessive bail does not create a right to any bail—a court may refuse to release a defendant at all under certain circumstances.
The Supreme Court has noted that bail and the refusal to set bail also implicate the right to due process found in the Fourteenth and Fifth Amendments to the Constitution. As a result, the Supreme Court has held that a judge must provide a “compelling governmental interest” for keeping a defendant in jail pending trial (in other words, refusing to set bail). (United States v. Salerno, 481 U.S. 739, 754-55 (1987).)
When defendants are advised that they are about to attend their bail hearing, many are eager to get a bail set so that they can then post a bond. Unfortunately, many are surprised when they are hit with a high or excessive bail. If a defendant cannot make bail, he may want to seek a bond reduction. Each state provides rules and procedures for obtaining a bail reduction; however, the general rule is that the burden on proving the need for a reduction is on the defendant.
Bond Reduction Steps
The bond reduction process begins with a simple motion. The motion should state the current bail amount, the nature of the charges, and a statement regarding the defendant’s inability to make bond. Many defendants will include prior findings of indigency, like a copy of the court’s order appointing counsel because of a defendant’s inability to pay for an attorney. The title of the motion will vary depending on the state’s rules of procedure. Some common titles include motion for bond reduction and writ of habeas corpus.
Once the bond reduction motion is filed, some jurisdictions will automatically set the motion for a hearing. However, in other jurisdictions, the defendant is responsible for getting a setting for a hearing by contacting the court’s coordinator or secretary. Before obtaining a setting on his motion, a defendant should strategize about the type of evidence to introduce at the hearing.
How Do I Get a Bail Bond?
If you or a loved one is arrested, it makes sense that you would do just about anything to get out of jail. However, do not make the mistake of contacting a bail bondsman before you speak with an experienced criminal defense law firm. If you contact a bondsman before talking to a criminal attorney, the bail bond fees could cost you a lot of money.
Here are five things you should know to help you make the best decision on how and whether to post bond for a love one.
Bail Bondsman Fees
If you go to a bail bondsman, you will typically be charged a 10% fee to bail your loved one out of jail. That means if bail is set for $50,000, you would have to pay a bondsman a fee of $5,000 as his premium.
Attorney Referred Bonds
If you contact and retain a criminal defense lawyer before you talk to a bondsman, you are entitled to an “attorney referred bond.” An attorney referred bond will lower your bail bond fees from 10% to 8%. This means that when bail is set $50,000, you will save $1,000 merely by retaining a much-needed criminal defense lawyer before you post bail. It is a win-win because you will need an attorney to handle your case and you will save money.
In some cases, it is better not to bail your loved one out until after their first court hearing (called an arraignment). This is because your criminal defense attorney can often convince the judge to lower the bail bond fees or reduce the bail at the arraignment. If the judge releases your loved one “on his own recognizance,” that means you will have to post no bail bond fees at all and you would save $5,000 by hiring a criminal defense attorney before talking to a bail bondsman.
Bail Can Be Reduced Before the First Court Appearance
In some counties, your skilled criminal defense attorney can contact the detention release officer on duty and ask that your loved one’s bail be reduced prior to the first court date. A detention release officer is on duty 24 hours a day, seven days a week. Of course if this happens, you will save a large sum of money in bail bond fees.