Bail-Setting Decisions

The bail-setting decision is one of the early court decisions made in a case, and it has attracted attention from researchers studying legal decision making. When a case is adjourned (postponed), the court must decide what to do with the defendant until the next hearing of the case—basically, should the defendant be released on bail or not? The main goal of the bail decision is to ensure that the defendant appears at court for the next hearing. The bail decision also can affect later decisions in a case. Although laws govern the bail decision-making process, they are typically vague and ill defined, thus allowing courts considerable discretion. Past research on bail decision making has mostly been conducted in the United States and the United Kingdom; researchers have aimed to describe how courts make bail decisions as well as to evaluate efforts to improve bail decision making.

Because it arises each time a case is adjourned for trial, sentence, or appeal, the bail decision is one of the most frequent legal decisions made by the criminal courts. The primary goal is to ensure that the defendant surrenders to the court at the next hearing of the case and so does not abscond. A secondary goal is that the defendant does not threaten community safety (e.g., offend) while released on bail. In the United States, the court sets a monetary amount of bail. A defendant may either be required to provide a security (deposit the amount with the court) before release, which is for-feited if he or she fails to appear in court, or be released on recognizance, which is a promise to appear, so the amount is paid only if he or she fails to appear. (For a fee, bail bondsmen can act as a surety, a third party who agrees to pay the forfeited amount to the court.) Nonfinancial conditions, such as curfew and surrendering firearms, may also be applied to bail. In the United Kingdom, defendants can be bailed (released) unconditionally; bailed with nonfinancial conditions or financial conditions, such as surety or security; or denied bail and remanded into custody. Whereas in the United States the bail decision is commonly measured on a continuous scale reflecting the monetary amount at which bail is set, in the United Kingdom the decision is typically measured as categorical because financial bail is uncommon. In most jurisdictions, bail jumping (skipping bail or absconding) is an offense.

The bail decision-making process is often governed by legislation, which is periodically revised. For instance, in the United States, currently there is the Federal Bail Reform Act of 1984 (state laws vary); in the United Kingdom, there is the Bail Act of 1976. It has often been recommended that the practice of bail decision making should adhere to the principles of due process rather than crime control. Thus, there is typically a general right to bail or pretrial liberty. However, there are exceptions if the court decides that the defendant may pose a risk of absconding or offending. The laws typically recommend that the court considers several factors (e.g., the defendant's offense, community ties, previous convictions, prior bail record, and strength of the prosecution's case) when judging these risks and consequently making bail decisions. Beyond this, the court is afforded considerable latitude in making bail decisions in terms of how it weights and integrates these and other factors.

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