Constitutional Rights During the Bail Process

constitutional rightsA suspect in a criminal case is guaranteed several rights under the constitution: the right to be informed of the charges against him, the right to confront the witnesses against him, the right to trial in a timely manner, the right to trial  by jury, the right to compel witnesses to testify on his behalf, and the right to an attorney.

Bail itself is not a constitutionally guaranteed right. That is, there is no constitutional right to bail, and not all who are criminal defendants can claim that they have the right to bail. Whether or not you are entitled to bail would depend upon the judge’s decision on whether or not you should be granted bail. While criminal offenses are usually distinguished as to which ones are bailable and which ones are not bailable, judges do still have the discretion to make changes to these classifications of what is bailable and non-bailable. If a judge determines that a defendant is a flight risk or a danger to the public, the amount of bail may be raised, or bail could be denied altogether. These are all well within the prerogative of a judge.

What is guaranteed under the constitution is that bail shall not be excessive, i.e., “Excessive bail shall not be required.” This means that while not all criminal defendants have a constitutional right to bail, those who are granted bail have the constitutional right against being charged excessive bail.

When is bail excessive? Bail may be considered excessive when it is so high and unreasonable as to be impossible. This takes into consideration the financial capacity of the defendant, and what he can reasonably afford as bail. If bail is set too high that, even with the best efforts, a defendant will not be able to put together the amount of bail because it is beyond his financial capacity, then it may be considered excessive.

The difficulty here is that judges also do have discretion in raising or lowering the amount of bail outside of the recommended bail schedule that is set per offense. A judge can do this if he deems it necessary. If, for instance, he considers a certain defendant to be a flight risk, then raising the amount of bail will serve as a stronger incentive for the defendant not to skip bail.

Fortunately, a defendant also has the right to present his arguments that might seek to modify the judge’s order, by lowering the amount of bail or reducing some of the bail conditions. He can do this within the bail hearing, where he has the right to be represented by counsel.

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