judges who set bail usually have several major factors they
use when deciding whether to set bail and then at what rate.
None of the factors alone decide the issue.
Seriousness of the Charge
The more serious the charges against the person, the more
likely a high bail amount will be set. For example, someone
that is charged with armed robbery will have to post higher
bail than someone charged with shoplifting. If the charge
is serious enough (such as murder or kidnapping), no bail
is set. The accused is remanded (held in jail) until trial.
Prior Criminal History
If the accused has a prior criminal history, then their chances
of having a higher bail set (or even being remanded) increase.
Also, the number of prior convictions, their seriousness,
and the time at which they were committed play into the judge’s
decision. For example, someone convicted of shoplifting when
they were a teenager twenty years ago won’t have as much against
them as someone that just got released from jail for armed
Prior criminal history means less and less as the crime gets
more serious. If someone is accused of first degree murder,
then their criminal history will matter very little in the
judge’s decision. Once again, for less serious offenses, history
plays a larger role.
Prior Bench Warrants
A defendant that has prior bench warrants for their previous
convictions has a much greater chance of their bail being
set very high or being remanded until trial. Bench warrants
are issued when a defendant fails to show up for court. The
entire issue of bail is about whether or not the defendant
will show up for their court proceedings, thus avoiding having
to issue a warrant.
It is possible that past warrants may have been issued in
error or were issued for invalid reasons. If these can be
satisfactorily explained by the defense attorney, the judge
may remove the warrants from their consideration.
Ties to the Community
A defendant that has strong ties to the community in which
they are accused has a more favorable position in regards
to bail. For a misdemeanor or less serious crimes, someone
with strong ties to the community may even get released on
recognizance. For felonies, those with strong ties to the
community will often have a lower bail amount set than those
without strong ties.
There are several factors that are considered to give the
defendant strong ties to the community. One is owning a home
or property and living with their family in that community
(it also helps if the family is in the courtroom for the arraignment).
If they have been a long time resident of the community, that
is even better. US Citizenship and employment at a steady
full-time job are also considered strong ties. An effort to
hire a private attorney can also show that the defendant has
a stake in sticking around to face the charges. Finally, if
the defendant voluntarily surrenders to the police (without
having to be arrested), it also shows strong willingness to
face the charges before them.
The Court Criminal Justice Agency
The Criminal Justice Agency (also know as the CJA or Pre-Trial
Services) makes recommendations with respect to releasing
each defendant that comes through the court. The agency makes
its recommendations after interviewing each defendant. Obtaining
a good recommendation from the CJA is a plus for the defendant,
but the judges are not bound by the CJA’s recommendation and
there is a lot of debate as to how much influence the CJA
has in the judge’s decision.
The judge that handles the arraignment of the defendant is
different than the judge that will later handle the trial.
Since a typical arraignment judge handles 80-100 arraignments
in a day, they aren’t particularly interested in getting to
the bottom of the case. The arraignment judge isn’t there
to hear evidence or conduct an investigation. They are there
to take care of that part of the criminal justice process,
which is to make sure the defendant is properly charged and
to determine whether or not bail is set and at what amount.
Judges are given a large amount of discretion when setting
bail. Their attitudes and experiences when setting bail vary
widely. Some judges set bail in most of their cases, others
release many of the defendants, while some others have a fairly
even split. The less experienced the judge, the more likely
they are to “play it safe” and either remand the defendant
(as compared to setting bail) or set bail (as compared to
releasing on recognizance).
The prosecutor handling the arraignment is usually an assistant
and doesn’t have much more than a passing interest in the
case. However, the better the prosecutor, the more likely
a defendant is remanded or has a high bail set.
The Defense Attorney
The arraignment can be among the most important few minutes
of the case. Hiring a good defense attorney can be the difference
between being remand or having bail set (or having bail set
versus getting released on recognizance). Hiring a lawyer
to guide the defendant through the arrest and arraignment
process can also reduce a lot of the stress on the defendant’s
family. A private attorney hired in time for the arraignment
can explain and monitor the process to reassure the defendant’s
friends and family that their loved one is getting their due
process. The earlier an attorney is involved in the process,
the more they can protect their client.
If the defendant is not able to hire an attorney, they will
be appointed a lawyer that is staffing the arraignment courtroom.
The appointed lawyers are not in the position monitor individual
cases from arrest to the arraignment. They receive the case
last minute after the accused has been fully processed by
the police and court staff. The appointed attorneys are often
very knowledgeable, but their caseload and the lack of time
involved prevents them from speaking with the police and the
court staff in order to obtain reliable information about
The attorney for the accused will usually provide their client
with accurate, reliable information about their situation.
That is of course dependant on the time of hiring and the
extent the lawyer is able to communicate with their client
while in the courtroom.