Is Bail Fair?

The 8th Amendment to the Constitution protects a person’s right to a fair bail.  Bail cannot be used as a way to make money for the State, nor is it meant to be punitive.  The purpose of bail is solely to ensure that a defendant appears at all of his or her court hearings.

When determining whether or not a defendant should be presented with a an offer of bail, courts look at many factors, most of which are to assess flight risk.  They include:

Criminal record.  What crimes, if any, has the defendant committed?

Potential Penalty of Current Offense.  Will the defendant flee to avoid a lengthy prison time?

Nature of the Current Offense.  Is it a felony or a misdemeanor?  What is the severity of the crime?

Threat to Society.  Is the defendant likely to reoffend while out on bail?  Is the public at risk?  Most states consider this factor when setting bail but some, like New York, are not allowed to consider public safety when setting bail.

Family Ties.  If the defendant has close family ties, they are less likely to flee.

Employment History.  Does the defendant currently have a job?  Has he held steady jobs in the past?  The defendant is less likely to flee if they are a dependable person with a good work record.

Length of Residency and Ties to the Community.  If a defendant has lived in an area for a long time and is in good standing in their community, they are less of a risk.

Mental Illness and/or Substance Abuse.  Should the defendant be evaluated for mental illness?   Do they have a history of substance abuse?  The court can require that a defendant enroll in a substance abuse program as part of their bail agreement.

Previous “Failure to Appear” Incidences.  If the defendant has skipped court in the past, bail will probably not be offered again.

Evidence of Flight/Known Aliases or False ID’s.  If a defendant has any false identifications, they may be planning to leave the jurisdiction.

Restraining Orders.  If the defendant has any current restraining orders, it may count against him for bail consideration.

Current Criminal Situation.  Is the defendant currently on parole or awaiting appeal of a criminal conviction?

Looking at all of these things, the court decides whether or not a defendant is eligible to post bail and how much that bail will be.  These are all legitimate factors to look at when determining risk but are the results fair?

One problem is the human factor.   Judges are people and people make decisions based on their individual concerns and prior experiences.  Bail decisions and amounts can vary greatly from one court to the next.  They also vary greatly from state to state, so the determination may be made less on the crime that was committed and more on where it occurred.  To combat this, and perhaps to streamline things, more and more courts are using mathematical algorithms to determine a defendant’s flight risk.  Specific information is entered into a computer program and a score or recommendation is returned.  The program considers many of the same factors that the court does.  The court can modify the recommendation or dismiss it altogether so ultimately the decision is theirs.