How is Bail Set?

Bail is used to guarantee, to the degree possible, that the defendant will show for all court hearings. The level of bail will depend on a number of considerations.

Bail will typically be set at the First Appearance.  Along with bail, assuming it is granted, the court will also set conditions of release.

Bail is Based on Flight Risk and Danger to the Community

First and foremost, these considerations are focused on the flight risk of the defendant or danger to the community. Flight risk is what it sounds like, the risks of the defendant taking off and not showing up for hearings. Danger to the community is also what it sounds like and will consider the seriousness of the crime, the character of the defendant, and the criminal history of the defendant among other considerations.

In consideration of flight risks, the court will consider a number of factors. The court will first consider whether the defendant has a history of fleeing or otherwise not showing up for court. If the defendant has fled in the past, the court will likely deny bail. In addition, if the defendant has a history of missing hearings, intentional or otherwise, the court will also take this into consideration.

The court will also consider whether the defendant has anything in the community keeping him or her there. The court will look at ties to the community such as family, home ownership, employment and other considerations that make it unlikely that the defendant would flee.

This will take into consideration the type and seriousness of the crime. This consideration addresses both the motivation to flee as well as dangerousness to the community.

Court May Deny Bail on Basis of Flight Risk or Danger to Community

In cases involving very serious crimes, the court may deny bail. The court may determine that the flight risk is too great or it may instead determine that the dangerousness to the community is too great. The court is not obligated to allow bail and denial of bail is not entirely uncommon.

Under the 8th Amendment, the court cannot unfairly deny bail nor can the court set arbitrarily high bail. It is up the state (i.e. prosecutor) to show to the court that the defendant is a flight risk or a danger to the community.

Burden on State but Burden Lower than Trial Burden

However, the standard is not the same standard of proof as necessary at trial. The standard, in other words, is not ”beyond a reasonable doubt.” And the standard will differ depending upon whether the issue relates to dangerousness to the community or to flight risk.

Under dangerousness to the community, the state must show by “clear and convincing evidence” that the defendant is a danger to the community. It might not sound like much but there is actually a significant difference between the two burdens.

The burden is still lower for flight risk. In consideration of flight risk, the state must only show flight risk by a preponderance of the evidence. This is a significantly less burdensome level of proof than either beyond a reasonable doubt or clear and convincing evidence.

Be Prepared to Address both Flight Risk and Danger to Community

In any event, it is important to be prepared for the bail hearing. It would be best to err on the side of caution and assume that the state will allege that you are either a flight risk or a danger to the community. Preparation will be key to both the setting of bail as well as a fair and rational bail amount.
