In most cases bail is granted. It is generally set directly following a defendant’s arrest at a bail hearing. At this hearing, the bail amount is set by the presiding judge. The amount of bail depends on several factors, including the county’s particular bail schedule, as well as the severity of crime, priors, pending charges, and more. But in some federal cases, bail is denied.
This can be for a number of reasons. Depending on the jurisdiction, guidelines can differ, but it is common for bail to be denied based on a public safety exception. This exception implies that the defendant poses a risk of danger to themselves and others if released on bail before their trial date. This is sometimes referred to as a “protective detention.”
In federal court, the Bail Reform Act of 1984 decrees when judges have the right to deny bail based on the danger risk of a defendant. These protective detentions are permitted by the Act so long as the defendant is being charged with a certain type of federal offense. These offenses include:
▶ Violent Crimes
▶ Crimes Involving Minors
▶ Neglecting to Register as a Sex Offender
▶ Drug Crimes with Maximum Penalty of 10 Years
▶ Crimes with a Maximum Penalty of a Life Sentence
▶ Crimes with a Maximum Penalty of Capital Punishment
▶ Felony Crimes with 2 Prior Qualifying Crimes on Criminal Record
▶ Crimes Involving Weapon Possession or Use
These offenses only make a defendant eligible for denied bail. It does not guarantee that their bail will be denied. A judge must also take into consideration the level of danger the defendant poses to the community and to themselves. They must consider the nature of the crime, the seriousness of the risk they pose to others, and the level of evidence the prosecution has against them, as well as the defendant’s criminal history, personal characteristics, mental illnesses, substance abuse problems, employment, family, and more. If a judge denies bail, they must explain why in a written order. Defendants have the right to appeal the order in a higher court, but these kind of appeal are rarely won.