“Bail” is the process the court undertakes to determine if an individual criminally charged can or should be released pending the disposition of their case. Bail also determines the conditions, if any, that may be required for successful compliance with pre-trial release.
Black’s Law Dictionary defines bail as “[t]he process by which a person is released from custody either on the undertaking of a surety or on his or her own recognizance.”
When considering an individual’s pre-trial release, several options exist to the presiding magistrate or judge:
- Release on her own recognizance (“ROR” or “OR”)
- Release on non-financial conditions that require pre-trial monitoring of the individual (e.g., Non-Monetary Release to Electronic Home Monitoring/Drug Treatment)
- Monetary bail—secured by property, cash, or surety that must be posted prior to release
- Unsecured bail—treated much like a civil contract to secure appearance
- Ordering the individual be held without bail
When determining the monetary amount and/or type of bail established in a particular case, the court should consider many different factors. The Commonwealth of Pennsylvania’s Pa. R. Crim. P. 523 is consistent with the Eighth Amendment of the U.S. Constitution, and summarizes the below significant factors:
(A) To determine whether to release a defendant, and what conditions, if any, to impose, the bail authority shall consider all available information as that information is relevant to the defendant’s appearance or nonappearance at subsequent proceedings, or compliance or noncompliance with the conditions of the bail bond, including information about:
- The nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;
- The defendant’s employment status and history, and financial condition;
- The nature of the defendant’s family relationships;
- The length and nature of the defendant’s residence in the community, and any past residences;
- The defendant’s age, character, reputation, mental condition, and whether addicted to alcohol or drugs;
- If the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;
- Whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;
- The defendant’s prior criminal record;
- Any use of false identification; and
- Any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.
When Bail Can Be Addressed
Bail can be addressed at numerous points in the criminal process, starting at the preliminary arraignment up and until the date of trial. The following is a list of the phases at which time bail can be addressed:
- The Preliminary Arraignment. When bail is initially established by the presiding Magisterial District Court Judge.
- The Preliminary Hearing. Up and until the charges are held for court, the magisterial district court in which the case is ‘born’ has jurisdiction over bail/bond issues. Jurisdiction of such matters may be transferred by motion prior to the disposition of the preliminary hearing.
- The Pre-Trial Phase. All Motions for Modification of Bail/Bond are to be filed generally and heard before the Motions Court Judge, regardless of whether the case has been assigned a trial court judge and/or has a trial date. Historically, the exceptions to filing a Motion for Modification of Bail/Bond before the Motions Court Judge are few and as follows: 1.) If the charge is Criminal Homicide, and 2.) If the Trial Court Judge has previously revoked the client’s bail (e.g. for failing to appear on a previous trial date, failing a drug test, etc.).
- The Trial Date. Upon oral motion on the date of trial before the trial judge assigned to the case.
If you have questions about posting bail, modifying bail conditions, or requesting a bail hearing, contact your criminal defense attorney.