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Excessive Bail: What Are Your Rights?


When a person is arrested and charged with a criminal offense, they are typically taken in custody to a local law enforcement station, where they will booked. After being booked, they may be held in a facility within the law enforcement station, or incarcerated in a county jail. Depending on the nature of the crime, as well as factors that include their previous criminal history, the individual may be released pending their first court appearance, or be required to remain in jail until their court date.

If the allegations against you, or a loved one, are serious enough that you are not granted release on your own recognizance, you will typically be required to post bail in order to be released while your criminal case is pending. Bail is a system in which defendants deposit money with the court in order to ensure they appear for their court proceedings. If you fail to appear, you not only face criminal repercussions, including the issuance of a warrant, but also the forfeiture of the money to the court. Defendants typically have two options when it comes to bail:

  • Cash bail – Defendants can post bail in cash with the court, which will then result in their release from custody. Cash bail should be returned when a defendant attends all court appearances and their case is concluded.
  • Bail bond – As defendants may not have enough cash to post the full amount of bail, they can use a bail bond as an alternative. These surety bonds are guaranteed by a licensed insurance company, through a bail bond agency, that also guarantees they will pay bond forfeiture if a defendant does not appear. Defendants are typically charged 10 to 15 percent of the total bond amount by the bail bond agency, or use property as collateral.

In less serious cases where bail is set at a lower amount, defendants have greater ability to secure their release through cash bail or a bail bond. However, when bail is excessive, it can complicate their goals of being released from custody during their court process. For many, this means missing out not only on their freedom, but also missing obligations, family time, and work – for however long a case may take.

While bail schedules are typically used to set bail, judges can use their discretion to raise or lower bail as they see fit. Typically, they will raise bail when individuals have prior convictions, are charged with serious offenses, and / or are considered flight risks – meaning they are likely not to appear in court. If bail in your case, or that of your loved one’s case, is set at an amount that makes it difficult for you to afford, you have the right to request that it be lowered. An experienced criminal defense attorney like those at Scott H. Palmer, P.C. can help you address matters of lowering bail in addition to your defense.

Your Constitutional Rights

Under the Eighth Amendment to the U.S. Constitution, you have the right to protection from excessive bail. This right ensures you are not to be unfairly punished for a crime you are only suspected of committing (as you are considered innocent until proven guilty), and that the government does not profit unlawfully by raising bail.

Unfortunately, despite this Constitutional right, we see judges across the country setting excessively and even impossibly high bails. In fact, excessive bail has become a major issue in our criminal justice system, and most recently resulted in a federal lawsuit against Harris County over its questionable bail practices, which were said to impact poor misdemeanor defendants who sit in jail until their cases are resolved, while those with money are able to secure their release.

In April, a federal judge issued a landmark ruling declaring Harris County’s bail practices unconstitutional, and ordered the release of nearly all misdemeanor defendants within 24 hours of their arrest. That ruling was appealed by the County, and the results could have major implications across the country when it comes to the bail system. Dallas County has already taken steps to create a pretrial division that bases bail on a person’s risk and criminal history, not their ability to make bail.

Because courts must consider factors other than a defendant’s ability to pay bail – including the nature of the crime and whether they pose threats to public safety – defendants who face excessive bail amounts still need to exercise their rights to seek lowering of their bail, as well as their right to legal representation when doing so. With the help of an attorney, defendants can challenge assessments made by the court regarding their criminal history and public safety risk, and provide evidence to support why bail should be lowered.

As with any legal matter, every case is different. Whether you have options when your loved one faces excessive bail is a matter that depends on the unique facts and circumstances involved. Our legal team at Scott H. Palmer, P.C. can help review those circumstances, as well as the criminal charges at hand, in order to provide the representation needed during bail hearings and throughout the criminal process. To discuss your situation, contact us for a consultation.

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