How a Bail or Bond Reduction Hearing Works

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 many states require judges to review bail or bond amounts if a defendant is stuck in jail due to their inability to pay.

Bail Reform Act: Federal Pretrial Release or Detention

Under the Bail Reform Act, a judge must decide whether the defendant will be released or detained pending trial.

The key questions before the judge are:

• whether the defendant poses a flight risk if released, and
• whether the defendant poses a risk to the community if released.

To make this determination, the judge can look at factors, such as the severity of the crime and the defendant’s character, physical and mental condition, family and community ties, and financial resources.

A judge must only order conditions deemed necessary to get the defendant back to court and to ensure public safety. Bail and bonds are mechanisms to incentivize a criminal defendant's return to court once released. If bail can't ensure a defendant's return to court, the judge can order pretrial detention.

(18 U.S.C. § 3142 (2026).)

What Is Excessive Bail?

If a defendant can’t afford the set bail or bond, they can try to get bail reduced by arguing that the amount is so high that it violates the Eighth Amendment's prohibition against excessive bail. This can be a tough legal hill to climb, though. The U.S. Constitution doesn't define the term "excessive bail." And while guardrails are in place, any determination is made on a case-by-case basis.

The U.S. Supreme Court has said that bail cannot be set so high as to be a ploy to force a defendant to remain in jail. However, the Court also won't go as far as finding a right to bail—noting that a court may detain a defendant if no release conditions will reasonably assure the defendant will return to court. (U.S. v. Salerno, 481 U.S. 739 (1987).)

How to Get Bail Reduced

So what's a defendant to do? The Bail Reform Act gives a defendant the right to ask for a hearing to reduce the bail amount.

Defendant's Burden

The Bail Reform Act states that the judge "may not impose a financial condition that results in the pretrial detention of the person." (18 U.S.C. § 3142 (c) (2026).) This language doesn't mean that anytime a defendant claims they can't afford bail, the judge must lower it to an amount they can afford. It’s the defendant’s burden to prove that the bail is excessive. Also, the defendant will need to show a legitimate and good-faith effort to raise the funds and an inability to do so.

Factors Considered in Bail Reduction

Although the court must take the above statutory language into consideration, it’s not required to set bail at a level that the defendant can easily or readily 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. Simply saying one doesn't have the funds is not enough to meet this burden. (U.S. v. Szott, 768 F.2d 159 (7th Cir. 1985).)

However, if a court sticks by its bail amount and the defendant does present a good-faith effort to raise the funds but can't, the court's decision amounts to a detention order. In this case, 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 so an appellate court has a record to review. (Fed. R. App. Proc. 9.)

What Are the Chances of Getting a Bond Reduction?

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.

Talk to Your Lawyer

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.