Criminal Defense

How Do Judges Set Bail in Criminal Court?

May 26, 2024 by Seppi Esfandi in Criminal Defense  
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How Do Judges Set Bail?

Usually, when someone is arrested, judges decide on a bail amount during their initial court appearance, which could be either a bail hearing or an arraignment. They typically follow standard procedures, such as setting bail at $500 for minor nonviolent offenses. Yet, judges can adjust bail amounts higher or lower or even forgo bail entirely and release the defendant on their recognizance (O.R.), depending on the case’s specific details.

Factors that Influence a Defendant’s Bail Amount

In California criminal courts, a defendant’s bail amount depends on various factors. According to California Penal Code 1275, judges or magistrates consider several key points when deciding on, adjusting, or denying bail:

  1. Public Safety: The foremost consideration is whether releasing the offender would pose a risk to the community. This is emphasized in Cal. Penal Code § 1275(a)(1), which prioritizes public safety above all else.
  2. Flight Risk: Judges evaluate whether the defendant is likely to flee the jurisdiction to avoid law enforcement and future court proceedings.
  3. Offense Severity: The nature and seriousness of the alleged offense are significant factors. Felonies involving violence, danger, or large-scale crimes typically lead to higher bail sums compared to misdemeanors. Penal Code § 1275(2) provides specific criteria for evaluating offense severity, such as:
    • Whether the defendant allegedly threatened the victim or witnesses.
    • Whether the offense involved the use of weapons.
    • Whether illegal narcotics were involved.
    • The defendant’s prior criminal record, including any history of bail violations like skipping court appearances.

These factors guide judges in determining an appropriate bail amount that balances public safety concerns with the defendant’s circumstances.

Bail Schedules

Bail schedules are common in many regions, allowing defendants to post bail with law enforcement before their court appearance. These schedules, often displayed in jails, outline bail amounts for typical offenses. Defendants can secure release promptly after being booked by paying the designated bail amount from the schedule. These bail amounts vary widely based on location, offense type, and residency.

Typically, bail for felonies is substantially higher—often five to ten times greater—than bail for misdemeanors. The severity of the crime directly impacts the bail amount. Generally, bail schedules are fixed, and law enforcement adheres strictly to them. Defendants seeking a lower bail amount must appear before a judge.

Duty Judges

In certain jurisdictions, duty judges are an alternative method for determining bail amounts instead of relying on bail schedules. These judicial officers serve as immediate contact points for bail decisions without requiring a formal court hearing. Duty judges offer a streamlined approach, facilitating quick determinations for arrested individuals seeking release from custody before their scheduled court appearance.

Accessible around the clock, duty judges ensure that bail determinations can be made promptly, even outside regular court hours. When an individual is arrested, law enforcement or jail staff contact the duty judge, who assesses various factors—including the offense’s nature, the defendant’s criminal history, and any flight risk—to determine an appropriate bail amount.

Unlike fixed bail schedules, duty judges possess the discretion to tailor bail decisions to the specifics of each case. By expediting the bail process and offering accessibility to defendants without immediate legal representation, duty judges provide an efficient and convenient means of securing pretrial release.

What Happens If I Can’t Afford To Post Bail For My Family Member?

If you’re unable to afford bail for a family member, some steps can be taken to address the situation. In some instances, bail may be set above the standard schedule, typically due to factors such as the seriousness of the alleged crime or the defendant’s parole or probation status. In such instances, your criminal defense attorney can request a bail hearing, ideally scheduled close to the first court appearance. During this hearing, your lawyer will advocate for a bail reduction to align it with the scheduled amount or a more manageable figure.

It’s important to note that while individuals are presumed innocent until proven guilty, judges often set bail based on the allegations as if they were true, posing challenges for the defendant. If the judge determines that bail is fitting or reduces it to the scheduled amount, the defendant must decide whether to post bail through a bonds company or by paying the total amount. Posting bail before or after the first court appearance dictates the scheduling of subsequent court dates, and failure to appear can lead to bond revocation and re-incarceration.

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December 3, 2019
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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
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  4. Tell police you need to contact your attorney
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