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 or bond reduction.
This article discusses bail and bond 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. State laws may offer more protections than federal law, and some states require judges to review bail or bond amounts if a defendant is stuck in jail due to their inability to pay.
Typically, a judge sets the initial bond or bail at an amount based on:
The judge can also look at factors, such as the defendant's character, physical and mental condition, family and community ties, and financial resources.
If a defendant can't afford bail or bond, they may argue that the amount is so high that it's excessive and violates the Eighth Amendment to the U.S. Constitution, which 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. (U.S. v. Salerno, 481 U.S. 739 (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 (2022).) It's the defendant's burden to prove that the bail is excessive. Also, the defendant will need to show a legitimate effort to raise the funds and inability to do so.
Although the court must take the above argument into consideration, it's 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. (U.S. 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 they cannot afford the bail set, the court must specify the reason(s) that the amount set is necessary. (U.S. 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.)
The chances of getting a bond reduction depend on a number of factors, including the defendant's current charges, past criminal history, financial resources, and character. The ability and skills of their defense attorney will also make a big difference. Ultimately, judges decide these matters on a case-by-case basis, so it's not a statistic easily reduced to a number.
Whether and how much bail or bond a court sets depends on many factors—a defendant's financial condition is only one of them. If you have questions about bail or bond reductions or pretrial release conditions, contact an experienced criminal defense lawyer in your area to get advice.