Bail Hearings

Understanding Bail

Almost anyone who has the unfortunate experience of going to jail almost immediately wonders how to get out. The most common way to be released from jail after an arrest is to post bail. Bail is characteristically money that is guaranteed to the court in exchange for a defendant’s temporary release from jail, complete with the understanding that the defendant is to return for the trial associated with the offenses for which he or she is charged. The rationale for bail is very basic, then – to ensure that a defendant will return to court. If the defendant fails to return for his or her next court appearance, a default warrant will be issued. The police are authorized to make an arrest on a default warrant.

The amount set for bail is largely dependent the severity of the charges against the defendant. Other factors do come into play, as discussed below. For these reasons, the amount set for bail can run the gamut. In Massachusetts, many people charged with a minor offense will simply be released on their personal recognizance, meaning they will pay no bail at all. If, however, the offense is serious, such as one that is punishable by a sentence of life in prison, or if the judge has sufficient reason to believe that a defendant who is released will not return for future court date, the judge may set bail as he or she sees fit. The judge makes an assessment of bail during a bail hearing.

What Happens at a Bail Hearing?

Ultimately, the judge will decide on whether bail will be granted, and if so, the amount of that bail. During the bail hearing, the prosecutor has the opportunity to present any and all grounds which he or she believes justifies a specified bail amount. Where the charges against the defendant are for serious crimes, such as those that involve violent acts, the prosecutor is likely to ask that no bail be granted or a very high bail amount be given. Likewise, higher amounts may also be requested for defendants who have a history of default warrants (i.e. not showing up for court dates). On the contrary, lesser crimes tend to warrant arguments for lesser bail. An example of some the various factors a judge might rely upon in making a bail decision include:

  • Whether the charges involve violence –as noted above, for charges that involve violence (i.e. murder, manslaughter, rape) prosecutors are far more likely to argue either that the defendant should not be granted bail and should stay in police custody or that bail should be set very high.

  • The criminal history of the defendant – a defendant who has committed no prior offenses and whose current charges are for a minor offense typically will be granted release on personal recognizance. On the contrary, a defendant who has a criminal history is likely to be viewed by the court as more likely to commit even more crimes if he or she is released from police custody before a trial.

  • Whether the defendant is considered to be a flight risk – a defendant who has family in the area and a job, as well as any involvements in organizations and/or associations in his or her community may be seen as less of a flight risk to a court because of these significant “ties” to his or her community. As a result, bail is less likely to be as high as it might be for a defendant with few or no significant ties to his or her community.

  • Whether the defendant has a history of substance abuse – this factor is particularly relevant when the current charges are drug related; a defendant who has a history of substance abuse or even prior drug charges is at risk of suffering a higher bail amount than he or she would if the current charges had nothing to do with drugs.

  • Whether the defendant is already on probation or parole for a previous crime – where a defendant is already on probation or parole at the time of his or her arrest for the current offense, a judge may be more likely to set a higher bail or even recommend the defendant stay in police custody until his or her trial.

Why You Should Have an Attorney at a Bail Hearing

During the bail hearing, the prosecution’s goal is to show the judge that bail is appropriate for the defendant, or even that bail should not be granted and that the defendant should remain in jail. The defendant’s attorney can present arguments as to either why bail should be lowered or why the defendant should be released on his or her personal recognizance. For example, the attorney may present evidence that the defendant is an active member in his or her church, has maintained steady employment, and/or has strong family ties in the community such that it is highly unlikely that he or she would be a flight risk. A defendant who seeks a lowered bail amount or a release on personal recognizance should consult with an experienced defense attorney, like Kathleen McCarthy, who knows the ins and outs of bail hearings.

On occasion, a bail amount will be set that seems unreasonable for the charges against the defendant. If this happens, a defendant can appeal the judge’s decision to a higher court. This occurs during a separate judicial proceeding known as a bail review. The appellate court has several choices in a bail review proceeding: 1) it may agree with the lower court and keep the original bail amount; 2) it can reduce the original bail amount; or 3) it can increase the bail amount. A defendant who already believes his or her bail is excessive does not want to have to pay even more than before. Not only is Attorney McCarthy qualified to handle a bail hearing, but she can also assist by arguing an appeal of excessive bail.

Kathleen McCarthy Is Available to Help You 24/7

It is understandable that no one wants to have to hire a criminal defense attorney. Yet when faced with the oppressive weight of the criminal justice system, the decision to retain a leading criminal defense attorney who can skillfully assist with all aspects of the bail process is a critical decision that should not be taken lightly.

If you or your loved one has been charged with a crime and are facing a bail hearing, your first step should be to contact an experienced attorney who will fiercely advocate on your behalf. Attorney McCarthy has over 25 years of criminal law practice from both the prosecution and defense perspectives and knows precisely the strategies needed to obtain the best deal for her clients. Contact the Law Offices of Kathleen McCarthy at (978) 975-8060 today for a free telephone consultation.