Is Your Bail Too High? Can It Be Reduced and If so, How?

To ensure a defendant’s appearance in court at a future date, law enforcement may set bail as a condition of releasing that defendant from police custody. Bail is a matter of right except in cases punishable by death, probation or parole violations and in certain public safety offenses. It can be paid in cash, personal check, money order or even a traveler’s check. Bail, however, is not excessive merely because a defendant cannot afford it.

In a Nutshell: One can request that a judge reduce bail by explaining the individual’s ties to community through employment and family, history of never failing to appear and, if applicable, tendering one’s passport or visa to the court clerk.

The basic concept behind bail is to allow a person otherwise in custody to be released from custody until a court appearance. If the defendant fails to appear in court as ordered, he or she forfeits the amount bail posted as a guarantee for the appearance, meaning it must be paid to the court clerk.

When the individual does appear in court, a judge may then review the amount of bail set, taking into consideration the individual’s ties to the community, the circumstances of the offense and the person’s history of appearing in court. The judge can then increase or decrease bail.


Bail is first set either according to an amount set forth on a warrant or according to a “bail schedule” that varies by the county, based on the offenses or offenses charged. For example, in Los Angeles and Santa Barbara County, bail for grand theft of an automobile (Penal Code § 487(d)(1)) is $35,000. In San Bernardino County, bail for the same offense is $50,000. In Sacramento County, bail is $10,000. Bail varies in a similar manner for other offenses as well.

When a defendant believes bail is too high, he or she can ask the judge hearing the case to reduce bail. This motion is allowed under Penal Code § 1275. This section instructs the court, in re-evaluating bail to consider the safety of the public, the seriousness of the charges, the defendant’s prior criminal record, and the probability of defendant appearing in court in the future. Defendant or defendant’s attorney should be prepared to discuss defendant’s ties to the community, i.e. his or her employment history, his extended family’s residence locations, and whether defendant has a passport or visa. When defendant has a passport and/or visa, it is prudent for defendant to offer to tender it to the court to clear any fears of defendant being a flight risk.

Section § 1275 instructs that public safety is the primary consideration. Whether this is constitutional is debatable because of 1275’s legislature history and numerous cases that suggest otherwise. See People v. Underwood (1973) 9 Cal.3d 345, 349-351; Proposition 4 (Article I, Section 12 of the California Constitution); People v. Barrow (1991) 233 Cal.App. 3d 721, 723 and Van Etta v. Scott (1980) 27 Cal.3d 424, 428.

There are two ways to “post” bail. The most common way is for the bail amount to contact a bail bond company, who will post a bail bond with the jailer or court for a non-refundable fee from the defendant. The customary fee is ten percent of the bond amount, however, it often is lower. If the defendant fails to appear, the bond company must pay the bond amount to the court clerk. As a practical matter, the bail bond company will usually ask the court for time to bring the defendant to court before having to deposit the bail amount to the court.

The second way to post bail is for the defendant to simply deposit the full bail amount with the jailer or court. At the conclusion of the case, if defendant makes all appearances, the full bail amount is returned to the defendant.

For more information about bail in general, click on the following articles:

1. How Is Bail Set?
2. When Can a Judge Attach Conditions to Bail or Deny Bail?
3. Can Bail Bondsmen Solicit Bail by Meeting a Person in Custody without Such a Request?
   

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