What Is Bail

Bail is an amount of money that the court decides that a person must pay to get out of jail and to ensure that the defendant will return to court for all of his upcoming court dates.  If you were arrested for a minor offense, the court may allow you to be released on your own recognizance which means you don’t have to pay bail but are still responsible for showing up in court.  If the offense is more serious and/or you are considered a risk of fleeing the jurisdiction, the judge may deny bail and have you remanded to jail until your trial.  

According to the Eighth Amendment, bail shall not be excessive, nor shall it be used as a way to make money for the government or as a form of punishment.  Its purpose is to provide a way for a person out of jail and to give him an incentive to return to his or her pending court appearances.     

There are many factors that go into the court’s decision to allow bail and to determine the amount of the bail.  Some of these factors are:

  • Bail schedule.  Each jurisdiction usually has predetermined schedule for each crime.  It is merely a recommendation and other factors will come into play as well.
    • Criminal record.  A defendant’s criminal record is always looked at to see if there are past violent or serious crimes or a pattern of committing the crime for which he has currently been arrested.
    • Potential penalty.  If the defendant has been arrested for a capital crime or one that he or she may be sentenced to life in prison or many years, the court may feel that the defendant may flee the state or even the country rather than face lengthy jail time or death.  
    • Nature of the crime.  For the most severe and violent crimes, bail will often be denied or set extremely high.
    • A history of skipping.  Skipping is when a defendant is released on bail and fails to appear in court.  If a defendant has a history of this, the court may assume that it will happen again and deny bail.


  • Ties to the community.  If the defendant has close family ties and is involved in the community, he may be less likely to flee the area.  They will also look at employment history and the length of time living in the community.


    • Aliases.  If a defendant is known to have aliases or false ID’s, he is considered a flight risk.
    • Mental illness and substance abuse.  Depending on the individual, a mental evaluation may be requested before the decision for bail.  If the current offense involved drugs or If there is a history of substance abuse, the judge may set completion of a substance abuse program to be a condition of bail.
    • Outstanding warrants.  If there are any outstanding warrants on the defendant, those will have to be dealt with as well, and if the defendant is currently on bail for another crime, bail may be denied and the previous bail may be revoked.
    • Parole or appeal.  If the defendant is currently on parole or pending appeal of a criminal conviction, bail may be denied.


  • Public risk.  Although some jurisdictions are not allowed to take into consideration whether or not the defendant is at risk of causing harm to the general public, most still consider this when determining bail.
  • Wealth.  A defendant’s finances may be looked at to determine if the amount set for bail would be a proper incentive for him to appear in court.  He may even flee the country altogether.


Although the bail system is not perfect, it is meant to be a fair way to allow even the poorest person the ability to get out of jail while awaiting trial and be a productive member of society.  One of the cornerstones of our legal system is the belief that every person is innocent until proven guilty, and bail is proof of that.  If an innocent man must sit in jail awaiting his trial while the wheels of justice slowly turn, he will most likely lose his job and possibly his family.  By allowing a defendant to be released on bail while awaiting trial so he or she can get back to a job or family, the harm done if that person is innocent is not as great.