In the United States, criminal defendants are presumed innocent until proven guilty. It is impossible to overstate the significance of this idea. At the same time, pretrial release is a very important element in a successful criminal defense. Defendants who are in jail can only speak to their attorneys on a limited and controlled basis; furthermore, it is almost impossible for them to participate in the case in a meaningful way. There are also personal reasons, aside from the legal reasons: persons who are incarcerated cannot work and cannot spend time with their families.
At the same time, the state has an interest in ensuring that the defendant appears at trial and keeping the public safe. The Eighth Amendment recognizes this balancing principle, and states that “excessive bail” is illegal in criminal cases.
Since the Constitution contains only two words about pretrial release, the courts have, over the years, developed a test to determine what is “excessive.” Some of the major factors include:
- Severity of the Charged Offense: The theory is that a defendant is less likely to appear at trial if the charges are serious.
- Risk of Flight: The same theory applies. Evidence of flight risk includes the financial means to travel, business or personal connections to another state or country, and the seriousness of the crime.
- Harm to the Public: This element is present if there is a verifiable fear that the defendant might harm witnesses. It was once present in DUI cases as well, but the advent of ignition interlock devices, which make it virtually impossible to drive under the influence, has largely eliminated this fear.
Pretrial release is never a way to “punish” the defendant; any such consideration is illegal.
Depending on the jurisdiction, most defendants go before a magistrate judge within a few hours of their arrest. At this “hearing,” the judge typically only hears one side of the story. As a result, most jurisdictions have default bail amounts, such as $750 for a misdemeanor and $2,000 for a felony, that are applied in most cases.
Once the magistrate sets bail, the defendant has two options. A bonding company will normally secure release for a fixed percentage of the bail (typically 10-15 percent). This percentage is nonrefundable. The other option is to post the entire amount with the arresting jurisdiction in cash; this cash deposit is refunded after the trial is over.
Personal recognizance is a third option that is sometimes available for non-violent offenses if the defendant has no criminal record. Many times, it is necessary to have a bail reduction hearing, so an attorney can present evidence on the defendant’s behalf.
Lawyers Who Are On Your Side
Pretrial release is often the foundation of a successful result at trial or during plea negotiations. For a confidential consultation with aggressive defense attorneys in Charlotte, contact the law firm of Remington & Dixon, PLLC today. We routinely represent defendants throughout Mecklenburg County and nearby jurisdictions.
Brandon double-majored in Political Science and Criminal Justice at the University of North Carolina at Charlotte. He earned his Juris Doctor from Barry University School of Law in Orlando, Florida. Throughout his career, Brandon has received numerous awards and recognition from his peers and agencies that rate attorneys. A few of these awards are from The National Trial Lawyers: Top 100 Trial Lawyer in 2014, The National Trial Lawyers: Top 40 Under 40 in 2014, Nation’s Top One Percent: National Association of Distinguished Counsel in 2015, Super Lawyers: Rising Stars in 2018 and 2019, and North Carolina Business Magazine: Legal Elite in 2019, among others.