For anyone that watches television programs focusing on crime, bail may seem like a simple thing. Based arbitrarily on the judge’s whim and dramatic effect, a good guy gets a bail that seems too high and a bad guy always seems to find the loophole that allows him to pay far too little. But the reality is much different. There are standards, practices and precedents that indicate to a judge how much bail should be set for a defendant, based on several different factors.
First of all, bail can be explained simply. When a defendant is arrested for specific crimes, the judge generally sets bail based on a variety of factors, including age, current charges, criminal history and a record of failure to appear in court, among other variables. The defendant may either pay bail in cash or use property. If they cannot afford bail, they stay in jail until their court date. After court appearances, money from bail is returned to the defendant, or property is no longer promised. Bail is simply collateral that the defendant, if set free during the period when he awaits his trial, will return to court. If he or she does not, the money or property promised is confiscated.
The price varies, depending on the crime, flight risk and myriad other factors. As a general rule, bail for felonies is usually 5 to 10 times as high as those for misdemeanors. And, of course, it also depends on the judge. The eighth amendment to the United States Constitution states that bail shall not be excessive – essentially as a safeguard against bail being used to raise money. Because of this, two defendants, one rich and one poor, both guilty of the same offense, may get different amounts for bail. This, again though, depends on the judge. If the crime is severe enough or the defendant is considered a flight risk, the judge may set the bail high enough that the defendant can’t pay or offer bail at all. This can be appealed, depending on the state.
In some states, if the defendant does not have enough money or property to cover the bail requirement, a bail bondsman may be used. The bail bondsman is generally a third party that will accept a down payment of 10 percent of the bail, then post the full bail for the defendant. If the defendant shows up to court, depending on the bondsman, the bail is returned minus administrative fees.
However, Kentucky is a progressive state when it comes to bail. In 1976 the state made it illegal to earn money from bail, thus effectively ridding the state of bail bondsman as the incentive to earn cash disappeared.
Another tool for determining bail is an algorithm assessing variables to decide what would be reasonable. In 2011, the Kentucky Legislature passed a bill requiring Kentucky judges to release defendants who scored low to moderate based on the algorithm, and, according to The Marshall Report, the statistics show the program has been successful; Kentucky has fewer defendants in jail awaiting trial than most other states and fewer defendants being rearrested while free on bail and awaiting trial. Judges still have discretion, but must indicate why they went against the recommended bail schedule according to the algorithm, and as a result are held more accountable than previously.
Kentucky Criminal Defense Attorneys are a network of criminal defense attorneys located throughout the state. If you have questions or seek a consultation, contact us at 1-844-KYDEFENSE or through our website.