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What is bail?

Bail refers to money or security paid to the court in order to secure the temporary release of a defendant charged with a crime. The defendant—or the friend or family of the defendant—pays money to the court in the promise that the defendant will reappear for the next court hearing in the case. Historically, bail did not require the delivery of money, but a person would serve as a surety and promise that the defendant would appear for later court dates.

What are the purposes or reasons for bail?

Bail lessens or reduces the chances that innocent persons will be detained in jail. It also reduces hardship on the defendant and the defendant's family members. Bail also gives a defendant the opportunity to get his or her affairs in order, hire a lawyer, and mount an effective defense. Bail also serves institutional purposes in that it can help to reduce crowding of jails.

Except for the most serious crimes, accused people who are put in jail have the option of paying bail in many cases so that they can more easily prepare their cases and get their affairs in order before the trial (iStock).

Except for the most serious crimes, accused people who are put in jail have the option of paying bail in many cases so that they can more easily prepare their cases and get their affairs in order before the trial (iStock).

Are all persons charged with crimes entitled to bail?

No, if a crime is serious enough or the defendant is considered to be a flight risk, a judge does not have to provide bail. This means that the defendant will stay detained pending the outcome of the criminal process. Some states also have laws that provide for a list of nonbailable offenses.

What factors do courts use to determine whether someone is entitled to bail and what amount?

States vary in the factors they consider in determining the availability and amount of bail. Some commonly considered factors include: the length of time the defendant has resided in the community, the defendant's employment status in the community, the financial history and resources of the defendant, whether the defendant has ever skipped a court hearing before, the defendant's reputation and character, the criminal history of the defendant, whether the defendant poses a risk to the community, and the seriousness of the underlying offense.

Are there constitutional limitations to bail?

Yes, the Eighth Amendment of the U.S. Constitution provides in part that "excessive bail shall not be required."

LegalSpeak: Non-Bailable Offenses in Arizona A.R.S. § 13-3961 (2008)

Offenses not bailable; purpose; preconviction; exceptions:

A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following:

1. A capital offense.

2. Sexual assault.

3. Sexual conduct with a minor who is under fifteen years of age.

4. Molestation of a child who is under fifteen years of age.

5. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally.

How does a court determine if bail is excessive?

A court examines whether the bail amount is much higher than the state interests involved in setting bail in the first place. As a practical matter, constitutional-based challenges to bail (arguing that the bail violates the "Excessive Bail" clause of the Eighth Amendment) are not very successful. The more successful challenges are that a court did not follow the state or federal statute providing for bail. Under the federal law known as the Bail Reform Act of 2004, a judge "shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court ... unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community."

 
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