Setting Bail for Public Safety

Abstract

Bail hearings affect the liberty of most criminal defendants. While a fraction of arrestees are sentenced to custody after either a guilty plea or a trial, virtually all defendants have their custodial status determined at a bail hearing at the commencement of their cases. At this hearing, the judge determines whether the defendant, presumed innocent, should be kept in custody pending trial or, instead, released on bail. The hearing is brief, allows the introduction of evidence that would be inadmissible at trial, and is conducted according to the discretion of the trial judge.2 It usually concludes with the judge setting bail at a certain dollar amount, and the defendant being released when he posts that amount. The process of setting an appropriate bail amount has historically required both state and federal judges to consider a variety of factors, including the risk that the defendant will flee, the severity of the offense, and the defendant's prior criminal record. In California, although each of these factors is relevant, the Legislature has mandated that none is more important than the potential danger posed to the public by the defendant's release. This note examines the difficulties posed to California judges as they struggle to follow this statutory command and set bail at an amount that