Is Bail a Constitutional Right?

A bail is a bond or a monetary pledge that indicates to the court that you, the defendant, will promise to adhere to the court’s guidelines and conditions if they grant your release. By posting bail with the help of sydney bail lawyers, you’re promising that you will appear at all future hearings related to the crime of which you’re accused and will guarantee your appearance at trial. If you fail to obey the court’s guidelines under the conditions of your bail, the bail is forfeited, and you’ll have to go back to jail while you await your trial.

So who can pay a bail bond? You can have your right to bail attorney post it, you can post your own bail, or someone else can post bail on your behalf. 

Who has a right to bail under the Constitution?

It’s true that bail is a protected right under the Eighth Amendment of the United States Constitution, but there are a few exceptions. The Eighth Amendment states that “excessive bail shall not be required.” Furthermore, the U.S. Supreme Court has ruled that the Constitution allows the court system to hold a defendant without bail while they await trial. What that means is that there is no absolute right to bail. 

Bail is not meant to act as a pre-trial punishment or a fine. Bail is intended to ensure that all criminal defendants appear at their hearings and trial. Keeping someone who is considered dangerous to the public-at-large in jail without the ability to post bail ensures the defendant will be at trial, thus, rendering the purpose of bail moot. 

While the right to bail is not explicitly stated in the Constitution, the 14th Amendment does give U.S. Citizens the right to due process. The right to due process means that those who are jailed are entitled to be charged with the crime they were arrested for, and must then either be convicted of the crime or released from jail within a reasonably short timeframe. Due process protects people from being kept in prison without a fair trial. But, they still do not have an explicit right to bail. 

Why would the court deny bail for an accused party?

There are certain circumstances where a defendant can be denied the ability to post bail. These include, but are not limited to, the following:

  • Accused of committing multiple murders
  • Charged with committing a murder so gruesome or heinous as to shock the public conscience
  • Charged with committing serial sexual assaults
  • Has committed another crime while already out on bail
  • If the defendant is considered a flight risk

How does a bail hearing work?

When an accused party requests a bail hearing, they’ll be able to go in front of a judge. In most states, the wait between the arrest and the bail hearing is 72 hours. In some cases though, the court system is severely backlogged, and it may take longer to get in front of a judge for a bail hearing. 

At the hearing, the judge will take into consideration the nature of the crime and the accused person’s history. The judge will also consider if the defendant is a flight risk. The defendant must prove to the judge that they are not a flight risk and do not pose a serious threat to the community. 

How can a defendant prove that they aren’t a flight risk or threat to the community?

  • Witness statements that shed a favorable light on the accused’s character
  • Documentation that shows the defendant’s ties to the community
  • Any evidence to suggest that the defendant is unlikely to flee the jurisdiction

If a defendant is released on bail, the judge will most likely ask them to give up their passport, and in some cases, the judge may freeze the defendant’s assets and bank accounts. 

There are many factors at play that will determine whether or not a judge is likely to set bail. Anyone who is accused of a serious crime needs the assistance of a qualified criminal defense attorney. If you’ve been threatened with jail time, don’t hesitate to protect yourself with help from an experienced attorney today.

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