Since time immemorial, police officers have arrested people for allegedly breaking the law. Then, in most cases, they take these defendants to jail. However, these individuals haven’t done anything wrong in the eyes of the law. So, the Eighth Amendment requires reasonable bail in criminal cases. In merry old England, sheriffs, and later judges, had almost absolute discretion to set bail amounts. The 1689 English Bill of Rights, which was basically the model for the American Bill of Rights, limited this power and outlawed “excessive” bail. The Eighth Amendment has almost exactly the same wording as the EBOR provision.
Our system is much the same. Sheriffs usually set presumptive bail amounts, largely based on the first factor discussed below. Quite understandably, many people pay this amount to get out of jail quickly, even though that amount might be unreasonable. At a subsequent bail reduction hearing, a Marietta criminal defense lawyer uses many more factors, which are also discussed below, to reduce the amount of bail and end the defendant’s pretrial detention.
Generally, judges hold bail reduction hearings during arraignments. Usually, like the criminal cases that follow them, bail disputes settle out of court. For example, prosecutors might agree to reduce bail if the defendant agrees to house arrest or another form of electronic monitoring.
Bail Schedule
A bail schedule is like a restaurant menu. The sheriff sets non-negotiable initial bail amounts. The “menu” bail price is largely based on:
- Severity of the Offense: Conventional wisdom holds that people gal problems who face small legal problems are more likely to hang around and face the music than people who face serious problems. For this reason, misdemeanor bail amounts are a fraction of felony bail amounts.
- Defendant’s Criminal Record: A better bail schedule analogy might be an X-Y graph. X is the severity of the offense, a largely subjective determination. Y is the defendant’s criminal history (first offense of any kind, second offense, etc.). The intersection of X and Y is the bail schedule amount.
Conventional wisdom is frequently incorrect, and conventional wisdom is frequently incorrect in this area. So, when a judge reconsidered these factors during a bail reduction hearing, a Marietta criminal defense lawyer often successfully spins them another way. More on that below.
At a bail reduction hearing, the scheduled amount is basically a presumptively reasonable sticker price. A Marietta criminal defense lawyer must prove this sticker price is unreasonable. That’s a stark contrast to a criminal trial, in which the state has the burden of proof.
Threat to the Community
This factor usually refers to the defendant’s threat to the community in general. DUI and drug trafficking are probably the two best examples.
When considered alone, people who allegedly commit these offenses pose a grave danger to the community. By most measurements, drunk drivers and drug overdoses are the two leading causes of unintentional death in Georgia. However, these offenses may also be status offenses. Drunk drivers are often alcoholics and drug traffickers are often drug addicts. The court cannot consider status when assessing punishment or setting bail.
Amount of Evidence Against the Defendant
Before judges rule on bail reduction motions, they normally asses the amount of evidence against the defendant. A vast amount of evidence increases the likelihood of a conviction, which theoretically scares defendants into running.
Judges must also consider the admissibility of this evidence. While a bail reduction hearing is not a pretrial hearing, if a Marietta criminal defense lawyer spots an issue with the evidence, such as a possible illegal interrogation, the judge must consider that argument as well.
Severity of the Offense
We mentioned one severity-of-the-offense issue above. Additionally, people who commit severe offenses may be more of a threat to the community. Domestic battery poses more of a threat that stalking.
There’s another dynamic as well. Quite frankly, many people blow off minor offenses. Over one million traffic ticket warrants are outstanding today. In contrast, if they face serious charges, many people are anxious to clear their names.
Defendant’s Criminal History
A similar dynamic applies in this case. Criminal cases have a substantial “shock and awe” factor among first-time offenders. People who have been through the system before are less intimidated. Arguably, therefore, the more extensive the criminal record, the lower bail should be.
Current Probation or Parole Status
In many jurisdictions, bail is unavailable in these situations. The same thing is often true if the defendant has immigration issues. These individuals basically committed two offenses. They broke the law, and they broke their supervised release contracts.
Violent/Nonviolent Offense
Generally, bail is lower for nonviolent offenses. This rule makes sense, in light of community and victim/witness safety issues, but it’s complicated.
Many offenses are semi-violent offenses. Stalking is a good example. This offense causes no physical injury, but it causes intangible injuries. Therefore, many sheriffs misclassify stalking as a “violent” offense.
Connection with the Community
This factor often looms large if the defendant is a transient with no local job, no local family, and no local address. People who drift into town can just as easily drift out. However, there’s often a fine line between imposing a high bail on a defendant because s/he’s a flight risk and imposing a high bail amount because s/he’s poor.
Ability to Flee
On the other end of the socioeconomic scale, some defendants have the financial means to travel. They also have a passport and a way to go far away. But the law cannot impose excessive bail on poor people or rich people.
Ideally, the defendant is between these extremes. Defendants who have local jobs and families are less likely to leave it all behind, even if they have some means to travel.
Threat to Individuals
People who commit violent crimes obviously threaten individuals. This fact cannot be used against them twice. Instead, the individual threat factor usually applies if the defendant has made an online or other threat to a witness or crime victim.
“Reasonable bail” is difficult to define. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
