If you can’t make bail, are you stuck in jail until trial? Not necessarily. There are constitutional and other limits on how much bail a court can impose on a defendant. You might be able to argue for a bail reduction.
This article discusses bail reduction hearings and related issues under federal law. For charges pending in state court, you'll need to review your state's laws on bail.
Bail is a mechanism for ensuring that a criminal defendant released from jail shows up for trial. Typically, bail is an amount set by a court based on:
The Eighth Amendment to the U.S. Constitution explicitly prohibits “excessive bail.” The term “excessive bail” is not defined in the Constitution. But the U.S. Supreme Court has weighed in on what it means, holding that bail cannot be set so high as to be a ploy to force a defendant to remain in jail. However, the Court has also ruled that the Eighth Amendment’s bar on excessive bail does not create a right to any bail—a court may refuse to release a defendant under certain circumstances.
The Supreme Court has noted that bail and the refusal to set bail also implicate the right to due process found in the Fifth and Fourteenth Amendments to the Constitution. As a result, the Supreme Court has held that a judge must provide a “compelling governmental interest” for keeping a defendant in jail pending trial (in other words, refusing to set bail). (United States v. Salerno, 481 U.S. 739, 754-55 (1987).)
The constitutional protections, as well as the Bail Reform Act (a federal statute), give a defendant the right to request lower bail when the amount initially set by the court is too high to pay. A defendant can request a hearing to seek a bail reduction.
At the hearing, the defendant can argue that the initial bail set by the court is so high that it is effectively a denial of bail and amounts to pretrial detention in jail, even though the defendant is not a flight risk or a threat to the public. (18 U.S.C. § 3142 (2020).) Although the court must take this argument into consideration, it is not required to set bail at a level that the defendant can easily pay. Courts can set bail high enough “to induce a defendant to go to great lengths to raise the funds without violating” the constitution or the Bail Reform Act. (United States v. Szott, 768 F.2d 159 (7th Cir. 1985).) As long as the court’s actual motive isn't to force the defendant to rot in jail awaiting trial, the court can set bail at any level it can justify.
Once a defendant informs the court (through a bail reduction request or otherwise) that she cannot afford the bail set, the court must specify the reason(s) that the amount set is “an indispensable” condition of release from jail. (United States v. Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991).) The court must set out its rationale in writing or orally on the record. (Fed. R. App. Proc. 9.)
Just as the defendant has the right to seek a lower bail, the prosecution can request that the court set a higher level of bail based on the risk that the defendant will flee from the jurisdiction or inflict harm upon a victim or other members of the public. (18 U.S.C. § 3142 (2020).)
And, the court may hold a hearing to inquire into the source of bail funds that it suspects may be illegal (proceeds from drug sales, for example).
Bail is only one of the conditions that a court may impose in order to grant release of a defendant from jail pending trial. Other conditions include travel restrictions, passport relinquishment, drug testing, electronic monitoring devices (ankle bracelets), house arrest, supervision and reporting during release, and others.
Whether and how much bail a court sets depends on many factors—a defendant’s financial condition is only one of them. If you have questions about bail or pretrial release conditions, it is essential that you contact an experienced criminal defense lawyer in your area to get advice.