Whether it be from personal experience or a favorite television show, most have heard of the term “bail.” Bail, in the criminal context, is the amount of money an individual, arrested for an offense, must post in order to be released from custody pending trial. But, you may be wondering, is bail something that is always offered? Or how does the court determine the amount of bail? In this blog, we provide a brief overview of bail and try to answer the questions of when bail is available and how the amount is determined.
In Indiana, our Supreme Court has recognized the right to bail as a traditional and cherished right of our criminal system.1 The right to bail is rooted in the concept of “innocent until proven guilty.” That is, by providing bail to an individual, a person who is arrested is not forced to sit in jail until that person is proven guilty beyond a reasonable doubt. However, while the court’s consider bail to be a right, this right is not absolute.2 In particular, according to the Indiana Constitution, “[o]ffenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.”3 In short, so long as you are not being charged with murder or treason, you have a right to bail.
Before discussing how a court determines the amount of bail to set in a particular matter, it is important to note the guiding rule for setting bail. That is, the general rule is that a court may not impose bail in an amount higher than is reasonably necessary to: assure the defendant’s appearance at court; assure the physical safety of an individual; or assure the safety of the community.4 When an individual faces an amount of bail that they are simply unable to pay, that individual can petition the court to reduce the amount. Now, whether a court reduces the amount is another question entirely, but the option is available.
In setting a bail amount, a judge is to consider several factors, including those listed specifically by statute. These factors include: (1) the length and character of the defendant’s residence in the community; (2) the defendant’s employment status and history and his ability to give bail; (3) the defendant’s family ties and relationships; (4) the defendant’s character, reputation, habits, and mental condition; (5) the defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring him to trial; (6) the defendant’s previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution; (7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance; the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance; that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and (10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring him to trial.5
In short, whether bail is available, and the amount bail is set will depend on the facts and circumstances of your particular case. Many individuals find themselves unable to post the amount necessary to be released, and in such situations, there are options available to get you out. This is where it becomes increasingly important to hire skilled defense counsel to assist you. If you find yourself in trouble, skilled defense counsel is crucial to protect your rights. This blog is written by attorneys at Dixon & Moseley, P.C. who handle the full spectrum of criminal cases throughout Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.