Most jurisdictions use bail schedules—lists of bail amounts that correspond to different crimes. So, a person who’s arrested can get out of jail by simply paying the schedule bail amount. But bail can be extremely expensive, even when going through a bail bondsman. (Learn about options for posting bail.) Are there any other options for bailing out? Yes. Bails amounts aren’t set in stone: By going to a judge, it’s possible to get bail reduced or get out of jail without having to pay bail (called “own recognizance” (OR) release).
Bail hearings are usually fairly quick and informal. But the hearing gives both sides (the prosecution and defense) the opportunity to present evidence and make their pitch to the court. At the conclusion of the hearing, the judge typically decides how much (if any) bail will be and what conditions the defendant must abide by while out on bail.
Though there are exceptions, a defendant generally has a right to release on bail (sometimes called “pretrial release”). The dispute, if there is one, is usually about the amount.
In setting bail amounts, judges are typically most concerned with ensuring the defendant comes back for court dates. If a defendant doesn’t show up for court, bail can be revoked and forfeited. So generally, the higher the bail, the more the defendant has to lose by skipping town. But on the other hand, judges aren’t supposed to set bail any higher than necessary to secure the defendant’s court attendance. At bail hearings, judges are tasked with coming up with a bail amount that strikes a balance between these two goals.
In deciding how much bail should be, judges generally consider factors like:
Judges often use the schedule bail as a starting point. If the circumstances indicate the defendant is a flight risk, the judge will likely stick with the schedule bail or increase the amount. If, on the other hand, there’s no reason to think the defendant won’t come back for court, the judge is apt to lower bail or do away with it altogether.
Judges also want to make sure defendants don’t commit crimes while on pretrial release. Setting a high bail can provide some assurance in this area: Because violating the law can lead to bail forfeiture, defendants have a financial motivation to stay out of trouble. But oftentimes, judges use bail conditions as a further guarantee. For example, a judge might condition bail release on the defendant staying away from certain people or places, refraining from drug or alcohol use, or complying with a curfew. Generally, judges have lots of discretion in deciding what bail conditions are appropriate under the circumstances.
