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How Is the Bail Amount Decided?

Posted on: 06/22/2011

If we were going off an episode of Law and Order, bail would some arbitrary number a grumpy, overworked judge comes up with. Of course, on television, that number largely depends on the mood of the judge, and how clever (or annoying) each of the attorneys is and perhaps what everyone is wearing. So how close to reality is this? Is bail just decided on a whim? How does the judge decide what bail to impose?

Thankfully, in states like California, the amount of bail depends on a little more than whether or not the judge has indigestion. In fact, the starting point for most bail amounts is predetermined by something called a Bail Schedule. These guidelines are reviewed each year by a panel of judges and set the exact recommended amount for most offenses.

In spite of the schedule, bail is still up to the judge to determine. Police officers, prosecutors and defense attorneys may have things to say to try and influence the judge during the bail hearing, but ultimately the decision is his or hers alone. According to Santa Clara County Court,”The Bail Schedule is the presumptive bail for many, but not all statutory offenses. A Judicial officer may review bail in any individual case and exercise discretion in setting appropriate bail different from the schedule.” What does that mean? The judge will always have the final word on the actual amount to be set. Even if both the defense attorney and the prosecutor recommend the minimum bail amount, the judge can still set bail higher. When the judge is deciding on bail, he or she will consider a number of factors besides the bail schedule.

What the Judge Might Take Into Consideration During a Bail Hearing


Severity of the Crime/Protection of the Public

The exact nature of the crime the person is being accused of is of course a big factor in how bail is set. In many states charge of Murder will not be granted bail, meaning the defendant is remanded until trial. By contrast a non-violent crime like tax fraud may not necessarily have a high bail associated with it.

Previous Criminal Record of the Defendant

If the accused has no criminal record this might be an instance where a smaller bail is set. The fewer convictions, especially of non-violent crimes, the better. The judge may be more likely to be lenient on bail.

Ties to the Community

This is one we often see on TV, but what does it mean? Ties to the community can mean having a steady job, children or family, or activity in the community as a volunteer. Responsibilities that cannot be kept while incarcerated, like caring for children or being a sole provider are good examples of this.

Flight Risk

If the suspect has significant financial resources, close ties to another country, or other assets that would make it easy to flee before trial, he or she might be deemed a flight risk. This person might be considered likely to try and evade the court by hiding in a foreign country. Being considered a flight risk will most likely mean bail is set much higher.

Curious what bail schedules actually look like? Below are links to some examples from around the Bay Area:

Alameda County  Bail Schedule
Santa Clara County Bail Schedule
Contra Costa County Bail Schedule
Marin County Bail Schedule
Solano County Bail Schedule
Sonoma County Bail Schedule
San Francisco County Bail Schedule

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