Generally, a judge can deny bail if he or she thinks that you are a flight risk or a threat to public safety. However, different jurisdictions will have different approaches to bail. California, for example, lets judges deny bail only for certain types of crimes. When it comes to denying or setting bail, judges have a lot of discretion.
7 reasons why a judge may deny bail
There are several reasons why a judge may deny you bail. 7 are:
- the judge thinks that you are a flight risk,
- the criminal charges are severe,
- your criminal history,
- the judge doubts that you will appear for future court dates,
- the judge thinks that you are a threat to the public,
- the judge is worried that you would obstruct justice or tamper with witnesses, and
- you disrespect the court.
Even if the judge does not completely deny bail, he or she may impose a higher bail amount if one or more of these factors are present. This can lead to the need for a bail bond.
Many jurisdictions now limit when bail can be imposed or when it can be denied completely. Some states have bail reform laws that require judges to release the accused person before trial without bail in some situations.
1. Flight risk
The criminal defense lawyers at our law firm have found that one of the most common reasons a judge will deny bail is if he or she thinks you are a flight risk. The judge might think this if you have:
- faced criminal charges in the past and fled the state,
- international connections,
- a passport,
- enough money that the judge thinks you would be willing to lose what you post in bail,
- no ties to the local community,
- property abroad or in other states, and/or
- communicated to others an intent to leave the jurisdiction.
2. Serious criminal charges
The judge may deny bail if the charges against you are severe.
Typically, if a judge imposes bail, the amount will be higher for serious charges. For the most severe felony offenses, the judge may deny bail completely. Our criminal defense attorneys have found that the denial of bail is most likely to happen for serious charges like:
- murder,
- rape, or
- terrorism.
We have also found that judges are unlikely to deny bail completely if you are only charged with a misdemeanor.
3. A criminal history with repeat offenses
The judge may also deny bail if you have a long criminal history. This is particularly true if you are a repeat offender and have a criminal record that includes:
- convictions for serious offenses,
- prior convictions for tampering with witnesses, failure to appear, or obstruction of justice,
- a history of violating court orders or terms of probation, and/or
- convictions for offenses that were committed while out on bail.
4. Bail jumping
The judge may deny bail if he or she thinks you will not appear at your future court dates. Also known as bail jumping, the judge may suspect this if you:
- have done it in the past,
- have expressed an intent to do it in this case, and/or
- have the financial resources to post bail and then lose it by not appearing in court.
5. Threat to the public
The judge is likely to deny bail if he or she thinks you would be a threat to the public if you were released on bail. Things that might make a judge worried about this are if:
- the charges against you are for violent crimes,
- you have not expressed remorse,
- you act as if you would hurt someone if you were released,
- you have a history of violating protective orders,
- the victim of the crime you are charged with is in the area, and/or
- you have access to firearms.
6. Obstruction of justice
You are also likely to be denied bail if the judge thinks that you would obstruct justice in some way, typically by tampering with witnesses or destroying evidence. The judge might think this if:
- you have already attempted to do it in your case, and/or
- you have a history of doing it in the past.
7. Disrespectful to the court
Some judges may deny bail as punishment for disrespectful behavior. This includes:
- insulting the judge,
- claiming that the justice system is rigged against you, and/or
- shouting, yelling, or otherwise disturbing court proceedings.
The decision is made at the bail hearing
The decision of whether to deny or to set bail, or to release you on your own recognizance, is often made at the bail hearing. This is your first court appearance. The judge can also set bail beforehand according to the local county bail schedule, and then the prosecutor or your defense lawyer can request a formal bail hearing to alter the amount.
Whether to set bail, deny it, or release you on your own recognizance (OR release) with no bail posted is a big step in your criminal case. A judge’s denial of bail will mean you will be in jail while your case winds through the legal system. This can take months or even years. If the judge’s decision is for pretrial release, you can work and be with your family members and loved ones while your case is pending.
In many cases where the judge deems that you should be released on bail money or OR, he or she will impose conditions of release. These are rules that you have to comply with, while you await trial. Some common conditions of bail are:
- random drug testing,
- attending all of your court hearings, and
- not getting arrested by law enforcement.
The law in California
In California, the bail process is the subject of Article I, Section 12 of the California Constitution. This provision allows for preventive detention. The judge can deny bail in:
- capital offenses where the death penalty is an option,
- felonies of violence,
- felony sexual assault offenses, and
- other felonies.[1]
However, according to the constitutional provision, the judge can typically only deny bail in non-capital cases when:
“…the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.”[2]
Legal Citations:
[1] California Constitution Article I, Section 12.
[2] Same.
