The purpose behind the setting of bond or bail is to ensure that the Defendant appears at future Court dates, and to protect society from danger. Courts, when they set a bond can consider: personal bonds (which means that no money has to be paid for the Defendant to remain free in the community); cash bonds; surety bonds; and 10% provisions (which means that the Court only requires 10% of the total bond amount to be posted. The Court, however, will keep 10% of the 10% posted at the conclusion of the case – provided that the bond is not forfeited by the Court because of a violation of the bond by the Defendant).
The Court can deny any bond if the Defendant is charged with murder or treason. Also, if the accusation is a violent felony, and at the time of the alleged commission of the violent felony, the Defendant was on probation, parole, released pending trial for another alleged violent felony, OR during the 15 years preceding the alleged violent felony, the Defendant had been convicted of 2 or more violent felonies arising out of separate incidents, the Court can also deny bond if the Court finds that proof of the Defendant’s guilt is evident or the presumption is great. The Court also has the ability to revoke the Defendant’s bond upon conviction and prior to sentencing for a violent felony offense.
Other than that, the Court has to set a bond. However, Judge’s have wide discretion to set unreasonable bonds. Because some Courts have tendencies to set unreasonable bonds, it is important that the Defendant is represented by an experienced and talented attorney who is prepared to address the issue with the Court.
The issue of bond is first addressed at the Defendant’s arraignment. It can be addressed at later Court dates by the Defense, the Prosecution, and/or the Judge. A bond decision can also be appealed to a higher Court.
When the Judge looks at the issue of bond, he/she considers a number of factors including: (a) the Defendant’s prior criminal record, including juvenile offenses. Even if the Defendant received HYTA, or some other status in the law that expunged the conviction, it can still be considered by the Judge; (b) the Defendant’s record of appearance or nonappearance at Court proceedings or flight to avoid prosecution. The Court will even consider failure to appear for traffic tickets and other civil law matters (c) Defendant’s history of substance abuse or addiction. If the Defendant has a prior drug or alcohol conviction, the Court is likely to weigh this factor against the Defendant (d) the Defendant’s mental condition, including character and reputation for dangerousness. If the Defendant has a mental condition, and if he can produce proof of medications/treatment that properly addresses the mental condition, it will help negate this factor; (e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence. Even though the Defendant is “presumed innocent”, and this factor seems improper based upon our Constitutional rights, the Court can still consider this (f) the Defendant’s employment status and history and financial history insofar as these factors relate to the ability to post bail. Proof of employment also is helpful in arguing that there is stability in the community, and that the Defendant is not a flight risk (g) the availability of responsible members of the community who would vouch for or monitor the Defendant. It is extremely helpful for those individuals to be in Court in order to make a favorable impression on the Judge; (h) facts indicating the Defendant’s ties to the community, including family ties and relationships, and length of residence; AND (i) and other facts bearing on the risk of nonappearance or danger to the public.
The Court is free to place conditions on the bond, such as for the Defendant to: (a) report to a Court agency; (b) not used alcohol/drugs; (c) participate in alcohol/drug testing; (d) participate in a treatment program for a physical/mental/substance issue; (e) restrict the Defendant from going to certain locations or associating with particular individuals; (f) surrender driver’s license and/or passport; (g) comply with a curfew; (h) seek employment; (i) continue or maintain schooling; (j) remain with a responsible person in the community who agrees to monitor the Defendant and report violations of bond conditions; (k) not possess firearm/dangerous weapon; (l) no violence/harrassment/threats (m) obey any injunctions such as PPOs; (n) comply with any other condition set. The Court can also place the Defendant on a tether when it deems it appropriate. The Court will also order the Defendant to not leave the state without permission, and to abide by all laws.
The Defendant (or the Defendant’s family if he is incarcerated) should provide his/her attorney with paperwork to support the factors mentioned above. If he/she is employed, he should provide pay stubs or a letter from the employer. If he/she is taking medications, there should be proof of the prescriptions. If he/she is in school, a report card and/or proof of being registered in school should be produced. Basically, if there is any positive information that is documented concerning the Defendant, it should be presented to his/her attorney.
Some Courts will order the probation department to obtain background information from the Defendant and his family in order to verify information, and make a bond recommendation. That recommendation is influential, but the Judge has the discretion to follow that recommendation or to do something different.
The Defendant usually is not provided with a lawyer at his/her arraignment. The Defendant, although given an opportunity to address bond, will not know what to present to the Court. An experienced Defense attorney can often secure a lower bond for a Defendant because of their preparation and experience. Furthermore, the Defense attorney can sometimes speak with the Detective assigned to the case to make a favorable bond recommendation to the Judge or magistrate. It is better to pay a Defense attorney to argue bond, rather than having to pay a higher amount to a bail bondsman, or having a greater risk of having a bond that is set in an unreasonable and unpostable amount.
There are some instances where posting a bond will not lead to the Defendant being released. If the Defendant has a parole detainer, or is serving a jail or prison sentence for any charge, he/she will not be released. Also, if the Defendant has any outstanding warrants in other courts, there is a chance he/she will continue to be detained until the outstanding warrant is resolved.
Your best bet is to reduce the chances of having freedom denied is to hire the right attorney. When you are essentially at the mercy of the Court, and there is already an allegation of some form of crime or wrongdoing, the right attorney may be the difference between being in custody or free.