How Bail is Determined in Criminal Cases

When a person is arrested and faces criminal charges that may result in jail time, there is often a lengthy period of time between the initial arrest and the trial. During the time between your arrest and the eventual trial, bail can be posted, allowing you to remain free until trial.

What is Bail?

People post bail by paying money as a guarantee that they will not flee the area and that they will return for the trial. As long as the offender out on bail appears in court for trial, the money is returned. If the defendant does not return to the court, the bail money is forfeited.

How is the Bail Amount Determined?

There are many factors that are considered in determining the amount of bail. The most important factor is that the bail amount must be sufficiently large that the defendant will want to return to trial. In most cases, it is not supposed to be so high that it keeps less fortunate defendants from being able to post bail. In practice, the fewer financial resources you have when arrested, the less likely you will be able to make bail. This is why the poorest among us are routinely kept in custody until trial. There are other facts that are taken into account as well when setting the amount of bail, including:

  • Your criminal record;
  • The seriousness of the crime of which you are accused;
  • Your financial resources; and
  • Whether you are a flight risk.

Because these questions are all fact intensive, two people charged with the same crime may have different bail amounts set.

Bail is a Constitutional Right That Can be Withheld Under Several Circumstances

The United States Constitution prohibits excessive fines and excessive bail. Even so, there is a lot of room for interpretation when it comes to setting bail. The Illinois legislature has drafted the laws that define how bail is set and all the circumstances affecting bail. Judges, however, retain the power to interpret these laws and apply them to each defendant, and so therefore may instead set an incredibly high bail or withhold it entirely. This happens if the judge decides you are a danger to the community, if the judge thinks you may flee to avoid the trial, if you are charged with a serious or violent crime, if the crime you are arrested for is punishable by life in prison, or for certain drug charges requiring more than ten years in prison. If there is a fear you will destroy evidence while out on bail, or if you are a repeat felony offender, you may also face an extremely high bail or remand.

Charged with a Crime and Need Bail?

Any time you are charged with a crime, you should call an experienced and knowledgeable criminal defense attorney. We will help you navigate the bail system and hopefully have you home for dinner. If you are in the Chicago area, call or email us at the Law Offices of David Freidberg now.