Criminal defense attorneys negotiating bail.

What Factors Are Considered in Setting Bail?

By David Hammond

Bail is a type of pre-trial restriction imposed upon a defendant to help make sure that they remain in compliance with the judicial process. Posting bail is often necessary in order to secure the conditional release of a defendant. Release on bail is made with the promise that the defendant will once again appear in court when it is required. Bail amounts are typically set by judges when the defendant makes his or her first appearance in court after the arrest. The judge usually has the discretion to stay with a standard bail amount according to posted bail schedules, set the bail higher or lower than standard bail, or deny bail altogether. In the alternative, the judge may choose to waive bail, release on the defendant’s own recognizance, or set other special conditions for the defendant’s release.

Considerations in Setting Bail

According to New York law, the court, in setting bail, must consider the type and level of control or restriction necessary to make sure that the defendant attends future court dates. In determining the extent of the bail restriction necessary to impose upon a defendant, a judge will usually consider things such as the seriousness of the alleged crime. It is pretty standard practice that a more serious criminal charge will result in a higher bail amount. This can be problematic in many situations, however, because police tend to arrest suspects on the most serious charges that the facts may possibly substantiate.

A judge will also usually consider the defendant’s criminal record and whether there are any outstanding warrants for the defendant. A significant criminal record will tip in favor of a higher bail amount. If there is an outstanding warrant for the defendant in another jurisdiction, it is a possibility that the judge will deny bail and keep the defendant in custody.

Essentially, a judge is evaluating the potential threat a defendant poses to a community if released and also the potential flight risk of the defendant. Factors such as the defendant’s criminal history and the charges the defendant currently faces go towards the potential threat to a community. Other factors focus more on the reliability of the defendant to reappear in court when required.

This is why a judge will look to the defendant’s ties to the community when setting bail. Those who are invested in their community are usually less likely to flee. They are also, incidentally, less likely to endanger others or perpetrate other crimes while out on bail. Ties to the community include things like relatives living in the area. A judge may still be stringent on setting bail regardless of community ties if the defendant has a history of missing court hearings or is a proven potential flight risk. For instance, if a defendant was apprehended while trying to evade law enforcement, he or she will usually be seen as a flight risk and a bail determination will reflect this accordingly.

Criminal Defense Attorneys

The criminal defense attorneys at CDH Law are here to fight for you right from the very beginning of criminal proceedings. We will be there, standing by your side, at your bail hearing and beyond. For strong legal counsel, you can depend on us. Contact us today.

About the Author
David is a former military prosecutor and defense lawyer with over a decade of experience fighting for service members and their families. He served nine years and two combat tours as an active duty US Army officer, then joined the Reserves and settled down in Syracuse to be near family. Now representing people across Central New York charged with serious felonies, misdemeanors, DWIs, and traffic offenses, he puts the same level of commitment into his civilian law practice. If you have any questions regarding this article, you can contact David here.