You have a lot to worry about if you’re charged with a crime. But one of your first concerns will be whether you can get out of jail while you’re waiting for court hearings and eventually your trial. Often you can do this quickly by posting bail in the amount shown on a bail schedule for your charges. But if you can’t afford to do that—or if your case is in a jurisdiction (state or federal court) that discourages or prohibits cash bail—you can go to a hearing to request lower bail or release on your own recognizance.
What Is a Flight Risk, and How Is It Determined?
At the pretrial release hearing (sometimes called a bail hearing), the judge’s primary concern will be the level of your flight risk: How likely is it that you’ll skip out on the charges rather than show up for your future court dates? When trying to answer this question, the judge may rely on an investigative report, along with any other information you provide and statements by community members. Depending on the jurisdiction, your chances of release may also hinge on the results of a risk assessment tool that uses an algorithm to determine the probability that you'll break the law while on release or fail to appear in court.
The judge will look at whether you have the incentive, means, and inclination to flee, based on several factors, including:
- the nature of the current charges
- the length of the sentence you would serve if found guilty
- whether it’s highly likely that you’ll be convicted, given the strength of the evidence
- your past record of showing up for court appearances—or not
- whether you have the financial resources to leave town
- the strength of your family and community ties, locally or in another country
- your age
- whether you have a job
- your reputation in the community for being reliable, and
- your history of substance abuse and treatment.
Risk assessment tools typically analyze statistical data for only some of these factors, such as your age, criminal history, record of court appearances, and current charges. That’s part of the reason critics say that algorithms can be unfair—because they don’t weigh the complete picture. And while many have argued that judges’ decisions about pretrial release can be arbitrary and too subjective, others point out that risk assessment tools perpetuate historical inequities in the criminal justice system by placing too much emphasis on defendants’ criminal history.
Danger to the Community on Pretrial Release
In many jurisdictions, the judge may also consider whether pretrial release would pose a danger to public safety or to the judicial process (for instance, if you're likely to intimidate or influence witnesses). Here again, the decision will be based on your criminal history, the current charges, and other relevant factors. Many risk assessment tools include scores measuring the probability that you would be violent or commit another crime while on pretrial release.
Conditions for Pretrial Release Based on Risk Factors
After weighing all of the relevant information, the judge will decide whether you should be released and, if so, under what conditions. For example, you might have to wear an ankle monitor with some form of home detention. If you were charged with domestic violence or assault, you may be ordered to stay away from the victim. Or you may be subject to a gag order if the judge believes you have the audience and ability to prejudice the jury.
In addition to traditional conditions, some courts are experimenting with methods that might actually help defendants show up for their appearances, like sending text reminders.
How Risk Factors Affect the Amount of Bail
In most states, where cash bail is still widely used, the level of your flight risk will also figure into the amount of bail. If there’s reason to believe that you’re likely to skip out on the charges, the judge will set bail on the higher end of the scale. That way, you would have more to lose if you failed to appear and had your bail revoked. But if all indications are that you’ll return for your court appearances, the judge may lower the scheduled bail or simply release you on your own recognizance.
Your criminal defense lawyer is your best source of further information and assistance if you want to get your bail reduced or ensure that the conditions of your pretrial release aren’t too onerous.