How Does a Judge Determine Bail?

First, let us take a look at bail in general. "Bail is an amount of money that a criminal defendant may be ordered to pay before being released from custody pending trial" (FindLaw, 2008b, p. 1). Bail can also be paid in other forms besides cash or check, such as property that is worth the entire set amount or a bail bond (typically purchased at 10% of the set amount) (Nolo, 2008). The fundamental purpose of bail is to give the accused enough incentive to return willingly to the rest of his or her court appearances. Finally, it should be emphasized that bail is in no way used as a form of punishment or retribution against the defendant (FindLaw, 2008b). In fact, the Eighth Amendment of our country's constitution protects defendants from excessive bail (FindLaw, 2008b; Nolo, 2008).

Pretrial Bail

After a suspect has been arrested and booked, he or she begins a sequence of events that typically leads to trial. This series of court appearances starts with an initial court appearance, which addresses a number of issues, often including bail (Ford, 2000). At this point, the presiding judge has three choices to pick when deciding what will be done with the accused. First, the judge may decide that the defendant has little reason to avoid future court appearance, and thus, he or she can be released either on personal recognizance or an unsecured bond. Both of these options are promises by the accused that he or she will voluntarily appear at all future court proceedings. A second option for the judge is to deny bail. Although it is a long-standing precedent in English tradition and law in most court cases, the U.S. Constitution does not require a judge to grant a defendant bail (FindLaw, 2008b). In the end, the Federal Bail Reform Act allows a judge to withhold bail if he or she has compelling evidence that the accused will most likely be a flight risk or could pose a danger to society if released (Ford, 2000; Law Offices of Bradford Cohen, 2008). Finally, the judge may decide to set bail for the defendant. If he or she chooses this option, an amount is set and any special restrictions for release are outlined (e.g., restrict travel, observe a curfew, or break off all contact with the victim) (FindLaw, 2008a; Ford, 2000).

Other Uses of Bail

It is important to understand, however, that this is not the only time a judge may be asked to evaluate bail during the court proceedings. Of course, if the accused violates any term of bail, personal recognizance, or secured bond, the judge is normally asked to reevaluate bail in the defendant's case (FindLaw, 2008b). Nonetheless, bail might be considered at points other than in the pretrial phase. For example, a judge has the option to impose bail "pending [the] imposition or execution of