Determining the amount of bail
Relevant factorsIf you have been arrested, and your criminal defense attorney is seeking your release on bail, the court will consider several factors when setting bail:
- The seriousness of the offense and the likely penalties.
- The strength of the case against you.
- Your criminal history and your history of honoring release and probation or parole conditions.
- Your community ties, including family ties and other community roots.
- Your employment history.
- Your financial assets.
- Your use of false identities.
- Return to court, even when faced with the near certainty of conviction and incarceration.
- Refrain from further criminal activity.
- Leave the witnesses alone.
- Emphasize that the crime is less serious than a heinous and violent crime.
- Show how the likelihood of conviction is less certain than it would be in a stronger case.
- Emphasize positive factors by providing the court with verifiable information about your reliability and community ties.
Bail agency evaluationsDepending on the jurisdiction in which you were arrested, it is possible that an independent agency or a division of the courts will conduct an investigation and make a recommendation as to your bail-worthiness. While these agencies consider the seriousness of the offense, they do not weigh it as heavily as the police, the prosecutor or perhaps the magistrate might. You and your family should cooperate fully with these agencies because the agency’s recommendation may either doom or back your bail application. If the agency confirms that you, your friends, family and employers are reputable and supportive, it is likely to recommend a bail that you can make. On the other hand, if no one cooperates, or if you or your relatives or friends mislead the bail agency, release on bail might be nearly impossible. Also, your statements from the bail interview might be used to impeach you if you testify otherwise at trial. Furthermore, lying to the bail agency might constitute a separate crime, or the court might consider it at sentencing to increase your sentence. The court could consider it an obstruction of justice if you make false statements to the court’s own pre-trial services agency.
Your criminal defense attorney’s role with the bail agencyYour criminal defense attorney usually will not have an opportunity to be present while the bail agency conducts its interviews, even when the agency interviews you. However, your defense attorney may still have opportunities to provide the bail agency with helpful information. Your attorney should gather as much information as possible about your community ties and provide helpful information to the bail agency. Materials demonstrating your community ties can consist of:
- Corroborating documents (e.g., pay stubs, deeds, and real estate appraisals).
- Information necessary for the agency to do its own investigation (e.g., the names, phone numbers, addresses and best times to call your family, friends and employers).