If you’re accused of a crime, you have a right to bail—don’t you? Ordinarily, yes. But there are some exceptions that allow a judge to deny bail. One common exception applies to defendants who pose a danger to the community.
Do I Have a Right to Bail?
In the American legal system, a defendant is innocent until proven guilty. But the government also has an interest in making sure those accused of crimes show up in court. The criminal justice system uses bail to strike a balance between the presumption of innocence and the need to ensure people don’t skip town after getting out of jail.
Can Bail Be Denied?
With some exceptions, (more on that below), a defendant generally has a right to pretrial release on bail. So, in most cases, the only issue of contention with bail relates to the amount. At a bail hearing, the defendant ordinarily tries to convince the judge to lower bail or dispense with the requirement completely—called release on one’s “own recognizance.” And the prosecutor might argue that a certain amount of bail is necessary to guarantee the defendant’s attendance at trial. Whether or not bail is set, the judge will usually set conditions of release that the defendant must abide by, such as remaining law abiding.
Why Might I Be Denied Bail?
In some jurisdictions, the right to bail is subject to “public safety exceptions.” These exceptions allow prosecutors to argue that bail should be denied altogether when the defendant poses a danger to the public. When a defendant is denied bail based on a public safety exception, it’s sometimes called a “protective detention” or "preventative detention."
Denying Bail in Federal Court
In federal court, the Bail Reform Act of 1984 dictates when a judge can deny bail based on a defendant’s dangerousness.
Generally, protective detentions are allowed in the federal system for defendants charged with certain crimes. These crimes include:
- crimes of violence
- crimes punishable by life in prison or death
- drug offenses that carry at least ten years in prison
- any felony when the defendant has at least two prior qualifying felony convictions, and
- felonies that involve minor victims, possession or use of weapons, or failure to register as a sex offender.
Being charged with one of these offenses only makes a defendant eligible for denial of bail. To actually deny bail, the judge must also find clear and convincing evidence that no conditions of release can assure public safety. In making this call, a judge must consider:
- the nature and circumstances of the charges
- the seriousness of the danger posed by the defendant
- the strength of the prosecution’s evidence against the defendant
- the defendant’s criminal history, and
- personal characteristics of the defendant.
Relevant personal characteristics might include things like substance abuse and mental health history, employment, and family ties.
(18 U.S.C. § 3142 (2022).)
Denying Bail in State Courts
Each state has unique laws that control its bail process. But in most states, a judge can deny bail if there’s strong evidence that the defendant committed a “capital” offense. Capital offenses are crimes for which the death penalty is possible—like first-degree murder committed under certain kinds of circumstances.
Some states also allow protective detentions for non-capital crimes. For instance, California law allows a judge to deny bail where:
- the defendant is charged with a felony involving violence or sexual assault
- strong evidence of guilt exists, and
- there’s a “substantial likelihood” that the defendant would cause “great bodily harm” to another if released.
Missouri law provides another example: A Missouri state court judge can deny bail to a defendant who “poses a danger” to a crime victim, the community, or any other person.
The details of state bail laws differ. But for the most part, state laws allow judges to deny bail based on dangerousness only when there’s a high risk of the defendant hurting someone while out on bail. (In a few states, all offenses are bailable.)
(Cal. Const., art. I, § 12; Mo. Const., art. 1, § 32; Tex. Const., art. I, § 11.)
What to Do if Bail Has Been Denied?
A defendant who is denied bail in federal court has a right to appeal the decision to a higher court. (18 U.S.C. § 3145 (2022).) In state court cases, the extent to which the denial of bail can be appealed, and the procedure for appealing it, varies from state to state (and often involves a writ of habeas corpus or a similar procedure that's like an appeal). The chances of winning a bail appeal are usually pretty slim.
Another possible strategy when bail is denied is to ask the judge to reconsider. Judges can always revisit whether to set bail, and might grant a renewed request when they receive new information. For example, if bail was denied in part because of mental health history, but the defendant's mental health has improved because of new medication, the judge might reconsider.
How an Attorney Can Help
If you or someone you know is facing criminal charges, it's best to speak with a criminal defense attorney right away. A lawyer can assess a defendant's unique situation and gather crucial information from family and friends to argue that the defendant is neither dangerous nor a flight risk. Local attorneys will know the ins and outs of the criminal justice system in your court and can provide invaluable guidance during this stressful time.