When a person is arrested on suspicion of committing a crime it sets in motion a series of events. Sometimes the person is simply fined and released. Sometimes they are charged but released on their own recognizance. Other times the police - working from an established “bail schedule” - inform them how much bail they or a loved one working with a bondsman will need to pay in order to secure their release. And still other times the suspect is held for a bail hearing before a judge or magistrate. At such hearings bail may be set, negotiated or denied. But why is it that some defendants are allowed to post bail after being arrested and others need to wait for a bail hearing?

Bail Schedule v the Bail Bonds Hearing

If you are a student of police procedurals on TV or have seen enough movies you’re probably convinced that everyone who is not released on their own recognizance after being arrested has to wait until they appear before a judge to find out what their bail amount will be.

The fact is movies and TV shows play up the arraignment/bail hearing because it provides opportunities for drama. Whereas in real life people are often offered bail shortly after being processed at the jail.

In such cases the police or sheriff are working from what are called “bail schedules”. These are lists of pre-determined bail amounts for various crimes. Once you are booked the law enforcement officer refers to the bail schedule and tells you how much money it will take to post bail and walk.

Not everyone is afforded this luxury however. Some need to wait until their arraignment before learning how much bail money they’ll have to come up with. So, why are some offered bail quickly while others are held until arraignment?

Why Would a Suspect Be Held For Arraignment?

After being taken into custody many people are offered bail based on the bail schedules we just discussed. In Colorado’s 4th judicial district for instance the bail schedule states that a DUI calls for a $1,000 bail, while a Class 2 felony calls for $50,000 bail and no bail is available for those arrested on suspicion of a Class 1 felony.

In the case of the most serious offenses law enforcement, acting in conjunction with the district attorney, may decide a suspect needs to be held until they can be arraigned before a judge or magistrate. There are a number of reasons why this might happen:

• The suspect may have a long criminal history - The miracle of database integration means that by the time a suspect booked, officers of the arresting entity know everything there is to know about them. That includes their entire criminal history. If during the booking process they learn a suspect has a long, unhappy relationship with the law it’s likely they’ll decide to hold that suspect until arraignment and let the judge decide whether they deserve bail and how much it should be.
• The suspect may have a history of jumping bail - Regardless of the nature of the charge against the suspect, if a background check reveals they have jumped bail in the past they can be pretty sure they’re going to have to wait for a bail hearing to plead their case in front of a judge in Adams County, Broomfield County, Weld County or Denver County.
• The suspect may have committed a non-bailable offence - Even the most experienced bail bonding agent isn’t going to be able to secure a suspect’s release if they have committed a non-bailable offence. In Colorado, for instance, Class 1 felonies are ineligible for bail. This type of felony includes first degree murder, treason, kidnapping, child abuse and assault while attempting to escape.
• The suspect’s attorney requests a hearing - In some cases the suspect and their attorney may conclude that the predetermined bail amount is too high. In this case the attorney can file a motion to have the bail amount reduced. However, that can only be done by a judge or magistrate during a bail hearing or arraignment.

Motion for Lower Bail

Should a suspect’s attorney file a motion on behalf of their client to have the bail amount lowered the suspect will remain in custody until the bail hearing. During the hearing itself the judge will ask pertinent questions about the suspect and his or her background and history and the prosecution may or may not argue against lowering bail. Following any arguments the judge will rule and that will be that.

The Scourge of the Algorithm

Some jurisdictions have taken to using what are known as “bail algorithms” to determine bail amounts. Bail algorithms essentially reduce the very human issue of freedom vs continued incarceration to a mathematical formula. Factors like criminal history, the nature of the offence and others are entered into the program. The computer then decides whether a person should remain behind bars or be released. We’ll have more on this disturbing intrusion into the constitutional right to bail in a later post.

The Bottom Line

In many cases the accused will be afforded the opportunity to bail themselves out shortly after being arrested. In other cases, however, they may be held until they can be arraigned before a judge who will decide whether to stick with the bail schedule recommendation, raise or lower the amount or deny bail altogether. Contact Rapid Release Bail Bonds to learn more.