The purpose of bail is to ensure that the defendant who was released from jail shows up to trial, and in most criminal cases, the bail is set fairly high, not so the defendant cannot afford to pay it, but so that the defendant is compelled to attend each hearing so that he or she can get the money back. When determining the bail amount, the judge will consider three things:
- The severity of the purported crime;
- Whether or not the defendant poses a flight risk; and
- Whether or not the defendant poses a risk to the community when out of jail.
If the alleged crime is, say, an accidental hit and run, and the defendant is a first-time offender with strong ties to the community, a home, family, and job, the judge may set the bail fairly low, as this person does not pose any sort of risk. However, if the defendant was arrested for alleged domestic violence and is a repeat offender, bail may be substantially higher, as he or she is a flight risk and a risk to the community. That said, the Eighth Amendment strictly prohibits “excessive bail.” But what is excessive bail?
Defining Excessive Bail, and Other Constitutional Stipulations
Unfortunately, the U.S. Constitution does not define excessive bail, and while the Supreme Court has weighed in on the matter, there is no set definition for what is “too high.” It is generally agreed, however, that an amount set as a ploy to hold a defendant in jail is unconstitutional.
It is interesting to note that while the Eighth Amendment protects defendants against excessive bail, it also does not create a right bail. If a judge does not want to allow a person out on bail, he or she could deny that person the right entirely under certain circumstances.
Of course, as law is apt to be, the matter of bail is not so simple. Though the Eighth Amendment does not create a right to bail, it should be noted that the Supreme Court views the refusal to set bail as an infringement on a person’s right to due process, which can be found in the Fifth and Fourteenth Amendments. Because of this, the Supreme Court requires a judge to provide a “compelling governmental interest” for keeping a defendant in jail pending trial. If they cannot, refusal to set bail is generally not allowed.
Request to Reduce Bail
Sometimes a judge may set a bail at an amount that he or she knows is impossible for the defendant to meet. When this happens, it is generally agreed that the excessive amount is a denial of bail. 18 USC § 3142 (c)(2) protects defendants against this form of discrimination by allowing them to seek a bail reduction.
At the bail reduction hearing, the defendant has the opportunity to argue that the initial amount set by the court is so high that it is effectively a denial of bail. However, though the court is required to take the defendant’s argument into consideration, it is not compelled to reduce bail to an amount that the defendant can easily pay. In many instances, judges set bail at a difficult-to-pay amount in order to induce the defendant to go to great lengths to raise funds for bail, and in order to ensure that the individual will have a reason to attend all of his or her hearings. So long as the court can justify its motives, it is not in the wrong.
Request to Raise Bail
On the flipside of the same coin, if a prosecutor feels that the bail amount is too lenient, he or she may request that the court raises the bail amount. A prosecutor or other government member may request an increase in bail because they believe that the defendant is a flight risk or that the defendant might inflict harm upon a member of the public. This law can be found under section (f) of the same code that protects a defendant’s rights to bail reduction.
Work With a Bail Reduction Attorney in Dallas, Texas
At Udeshi Clark and Associates, we are dedicated to upholding defendants’ rights. If you believe that your constitutional rights are being violated by excessive bail, reach out to our Dallas bail reduction lawyers for aggressive legal representation today. Call our office or schedule an appointment online to get started.