In this third installment of the ‘Demystifying Bail and Bail-Related Information’ series, we will address the topic of how the amount of bail is determined by the judge.

Question Four: How is the Bail Amount Determined

The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This prohibits the federal government from imposing unduly excessive bail as a condition of a criminal defendant’s release prior to trial. In Schilb v. Kuebel, 404 U.S. 357 (1971), the protection against excessive bail has been applied to the states under the Fourteenth Amendment of the U.S. Constitution. As a result, state courts are also prohibited from requiring excessive bail from criminal defendants.

But, of course, the question remains, what would be deemed to be excessive and ultimately, how is the bail amount actually determined pursuant to this guiding principle?

In determining whether there will be conditions of a criminal defendant’s release or not, the court must examine:

  1. The nature and circumstances of the offense charged, including 31 whether the offense is a crime of violence;
  2. The weight of the evidence against the defendant; and
  3. The history and characteristics of the defendant, including:
  • The person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings;
  • Whether, at the time of the current offense or arrest, the defendant was on community supervision, probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law; and
  • The nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release.

These are the same circumstances that the court will examine when determining the amount of bail to set as well. The court has to weigh the above information in sort of a balancing test. On one hand, the State of Washington has an interest in ensuring that the defendant charged with a crime will appear before the court prior to trail. However, the individual also has an interest in not being punished for a crime before they have been convicted without due process of law. If a person has stronger ties to the community, has been employed at the same job for a long amount of time, is involved in different non-profit work or participates in local events, has a family and children in the area, and has a strong foundation in the community, it follows that the person is less likely to post bail and upon release flee to another jurisdiction. By weighing these various items above on a case-by-case basis, the court is able to determine a reasonable amount of bail for each defendant. While four individuals may be charged with the same crimes, one may be released on their own recognizance, one released with a bail amount of $10,000, one released with a bail amount of $75,000, and another be prohibited from being released.

If you have been charged with a crime and need experienced legal representation, contact the Law Office of Erin Bradley McAleer at (360) 334-6277 for a free consultation.

To be continued..

Demystifying Bail and Bail-Related Information – Part iv