The entire modern bail system in America stems from the passing of the Habeas Corpus Act in England during the 1670s. Since then bail has been a way for persons accused of a crime to remain free while awaiting prosecution. Before gaining this freedom, however, a person often has to stand before a judge.
There are instances when certain crimes are listed on a “bail schedule” which has set bail amounts for that specific crime, and defendants can often be released from jail by posting this amount before ever seeing a judge. Unfortunately for many, judges have a large amount of discretion when setting bail, and they have no duty to follow a bail schedule.
Many people believe that the eighth amendment to the U.S. Constitution guarantees a person bail, but it doesn’t. This amendment only states that the court cannot impose excessive bail. Judges, in many cases, can remand the accused to custody. The denial of bail occurs only in certain situations, such as when a defendant has a mental condition or could obviously pose a threat to himself or others.
A judge will also consider whether a suspect has extensive ties to a community such as a family, job or ties to his neighborhood. If he doesn’t then he may not be trusted to return to trial. The court will also consider how serious a certain crime was and the chances of the accused being convicted before deciding upon granting bail or not.
A judge can also decide to set certain conditions on a person’s bail that they must follow or risk being re-arrested. This is often used to keep suspects away from certain people such as victims or bad influences, but conditions can also be used to ensure a suspect’s return to trial. Some judges will demand that a person reside at a particular address and may even make them wear an ankle monitor. In other instances the judge may require another person to act as a surety for the defendant. The idea here is that a person is less likely to abscond if they know a friend or family member will suffer financially because of it.
Legal Influences on Bail Amount
There are also several legal issues a judge may consider before setting bail. The court will always review a person’s previous criminal record before granting bail. If the suspect is a repeat offender then there is a chance he may not be granted bail at all. The court also considers whether or not the defendant has absconded from justice before. Any judge that has a defendant before him that has skipped out on bail before is not likely to grant it to the suspect again. As mentioned before, the judge also considers the seriousness of the crime. When defendants are accused of capital crimes then they are more likely to go on the lam, mostly due to the possibility of life in prison or the death sentence.
Bail isn’t as straightforward as many people believe. Sometimes it is as easy as calling a bail bond agent and having them post bond, but not in all circumstances. A judge has absolute discretion when deciding on a bail amount, and there are several factors he will consider before releasing a suspect back out into the public.