Bail

A court exercises its discretion with respect to the allowance of bail. In reaching its decision, it evaluates the circumstances of the particular case, including the existence of doubt as to the accused person's appearance at trial. Unreasonable delay or postponement in the proceeding, which is not attributable to the accused, usually constitutes a ground for bail—in some jurisdictions, by absolute right; more frequently, at the discretion of the court.

In jurisdictions in which it is neither proscribed nor regarded as an absolute right, the grant of bail pending a motion for a new trial, a review, or an appeal is also discretionary. The grant of bail is then determined in light of the probability of reversal, the nature of the crime, the likelihood of the defendant's escape, and the character of the defendant.

The decision to grant or deny bail is reviewable, but the scope of the review is limited to whether the court abused its discretion in its determination.

The amount of bail set is within the discretion of the court. Once fixed, it should not be modified, except for good cause. An increase cannot be authorized when the arrest warrant specifies the amount of the bail. An application for a change in bail is presented to the court by a motion based on an AFFIDAVIT (a voluntary written statement of facts) confirmed by the oath of the person making it. The affidavit must be taken before a person authorized to administer such an oath and must contain the facts justifying the change. The EIGHTH AMENDMENT to the Constitution and the provisions of most state constitutions prohibit excessive bail, meaning bail in an amount greater than that necessary to ensure the defendant's appearance at trial.

The Bail Reform Act of 1984 helped to set guidelines allowing courts to consider the danger a defendant might present if released on bail. This response to the problem of crimes committed by individuals who had been released on bail marked a significant departure from earlier philosophies surrounding bail. Bail laws took on a new importance; they would ensure the appearance of the defendant in proceedings, and they would see to the safety of the community into which the defendant was released.

Pursuant to the 1984 act, if the court deems that the accused may, in fact, pose a threat to the safety of the community, the accused may be held without bail. In 1987, United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697, addressed the constitutionality of holding an individual without bail while awaiting criminal trial. The Supreme Court held that DUE PROCESS was not violated by the detention of individuals without bail.