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How a Bail Reduction Hearing Works

Can’t make bail—stay in jail. Or so it sometimes seems. However, there are constitutional and other limits on how much bail a court can impose on a defendant, which can support the defendant’s request for bail reduction.

This article discusses bail reduction hearings and related issues under federal law.

Purpose of Bail

Bail is a mechanism for ensuring that a criminal defendant released from jail shows up for trial. Typically, bail is an amount set by a court based on:

  • the severity of the alleged crime,
  • whether the defendant poses a flight risk the defendant if released, and
  • whether the defendant poses a risk to the community if released from jail.

Constitutional implications

The Eighth Amendment to the U.S. Constitution explicitly prohibits “excessive bail.” The term “excessive bail” is not defined in the Constitution and the Supreme Court has weighed in on what it means, holding that bail cannot be set so high as to be a ploy to force a defendant to remain in jail. But, the Court has also ruled that the Eighth Amendment’s bar on excessive bail does not create a right to any bail—a court may refuse to release a defendant at all under certain circumstances.

The Supreme Court has noted that bail and the refusal to set bail also implicate the right to due process found in the Fourteenth and Fifth Amendments to the Constitution. As a result, the Supreme Court has held that a judge must provide a “compelling governmental interest” for keeping a defendant in jail pending trial (in other words, refusing to set bail). (United States v. Salerno, 481 U.S. 739, 754-55 (1987).)

Request to reduce bail



Once a defendant informs the court, through a bail reduction request or otherwise, that she cannot afford the bail set, the court must specify the reason(s) that the amount set is “an indispensable” condition of release from jail. (U.S. v. Montececon-Zayas, 949 F.2d 548 (1st Cir. 1991).) The court must set out its rationale in writing. (Fed. Rule of App. Proced. 9.)

Government's Request To Increase Bail

Just as the defendant has the right to seek a lower bail, the prosecution can request that the court set a higher level of bail based on the risk that the defendant will flee from the jurisdiction or inflict harm upon a victim or other members of the public. (18 USC § 3142 (f).)

And, the court may hold a hearing to inquire into the source of bail funds that it suspects may be illegal (proceeds from drug sales, for example).

Other Conditions of Release

Bail is only one of the conditions that a court may impose in order to grant release of a defendant from jail pending trial. Other conditions include travel restrictions, relinquishing a passport, drug testing, electronic monitoring devices (ankle bracelets), house arrest, supervision and reporting during release, and others.

See a Lawyer

Whether and how much bail a court sets depends on many factors, and a defendant’s financial condition is only one of them. If you have questions about bail or release conditions, it is essential that you contact an experienced criminal defense lawyer in your area to get advice.

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