If you’re accused of a crime, you have a right to bail—don’t you? Ordinarily, yes. But there are some exceptions. One common exception applies to defendants who pose a danger to the community.

The “Right” to Bail

A defendant is innocent until proven guilty. But the government also has an interest in making sure people come to court. The criminal justice system uses bail to strike a balance between the presumption of innocence and the need to ensure people don’t skip town after getting out of jail.

A defendant generally has a right to release on bail. So, in most cases, the issue of contention with bail relates to the amount. At a bail hearing, the defendant ordinarily tries to convince the judge to lower bail or dispense with the requirement completely—called release on one’s “own recognizance.” And the prosecutor might argue that a certain amount of bail is necessary to guarantee the defendant’s attendance at trial.

“Public Safety Exceptions” and “Protective Detentions”

In some jurisdictions, the right to bail is subject to “public safety exceptions.” These exceptions allow prosecutors to argue that bail should be denied altogether when the defendant poses a danger to the public. When a defendant is denied bail based on a public safety exception, it’s sometimes called a “protective detention.”

Federal Courts

In federal court, the Bail Reform Act of 1984 dictates when a judge can deny bail based on a defendant’s dangerousness. Generally, protective detentions are allowed in the federal system only for defendants charged with certain crimes. These crimes include:

• crimes of violence
• crimes with a maximum penalty of life in prison or death
• drug offenses that carry at least ten years in prison
• any felony, where the defendant has at least two prior qualifying felony convictions, and
• felonies that involve minor victims, possession or use of weapons, or failure to register as a sex offender.

(18 U.S.C.A. § 3142(e) & (f)(1) (2016).) Being charged with one of these offenses only makes a defendant eligible for denial of bail. To actually deny bail, the judge must also find by clear and convincing evidence that there aren’t any conditions of release that could protect the public. In making this call, a judge is supposed to consider:

• the nature and circumstances of the charges
• the seriousness of the danger posed by the defendant
• the strength of the prosecution’s evidence against the defendant
• the defendant’s criminal history, and
• personal characteristics of the defendant.

Relevant personal characteristics might include things like substance abuse and mental health history, employment, and family ties. (18 U.S.C.A. § 3142(g) (2016).)

A judge who decides to deny bail must include the reasons for the denial in a written order. A defendant can then appeal the decision to a higher court. But the chances of winning the appeal are usually pretty slim. (18 U.S.C.A. §§ 3142(i), 3145 (2016).)

State Courts

Each state has unique laws that control the bail process. But in most states, a judge can deny bail if there’s strong evidence that the defendant committed a “capital” offense. Capital offenses are crimes for which the death penalty is possible—first degree murder being the most common example. (See Cal. Const., art. I, § 12, subd. (a); Tex. Const., art. I, § 11.)

Some states also allow protective detentions for non-capital crimes. For instance, California law allows a judge to deny bail where:

• the defendant is charged with a felony involving violence or sexual assault
• there’s strong evidence of guilt, and
• there’s a “substantial likelihood” that the defendant would cause “substantial bodily harm” to another if released.

Missouri law provides another example: A Missouri state court judge can deny bail to a defendant who “poses a danger” to a crime victim, the community, or any other person. (Cal. Const., art. I, § 12, subd. (b); MO. Const., art. I, § 32, subd. (2).)

The details of state bail laws differ. But for the most part, state laws allow judges to deny bail based on dangerousness only when there’s a high risk of the defendant hurting someone while out on bail.

Questions for an Attorney

• In my state, can a judge deny bail based on dangerousness in a misdemeanor case?
• What are some of the other reasons that a judge can deny bail?
• Can I appeal a judge’s decision to deny bail?