Excessive Bail: What Are Your Rights?

A person who is arrested and charged with a criminal offense is typically taken into custody to a local law enforcement station, where they are booked. After the fingerprints and mugshots, they can either be held in a facility within the station or taken to county jail. Depending on the severity of the crime, prior convictions and other factors, the individual may be released pending their first court appearance, or be required to stay in jail until their court date.


If the allegations are severe enough that a person is not released on their own recognizance, they may be required to post bail to be released before going to court. According to the bail system, the defendant, or their family, must deposit money with the court to ensure they appear for their court proceedings. If they don’t, they face criminal repercussions including a warrant for arrest and forfeiture of the money.

In less serious cases, bail is typically a lower and manageable amount. Unfortunately, a judge may decide to set an excessive bail, complicating the defendant’s goals of being released from custody. For many, this means not only losing their freedom, but also missing obligations such as family time and work, which can have devastating consequences. If your rights are violated, you may be able to seek damages and remedies by filing a civil rights case.

Constitutional Right

Under the Eighth Amendment of the United States Constitution, there are important limitations on the government’s treatment of criminal defendants and punishment of persons convicted of crimes. More specifically, if you are arrested and taken to jail, you have a constitutional right to protection from excessive bail.

Since no monetary amount is provided for any specific crime, the idea of what constitutes a disproportionate bail amount is subjective. A fair bail amount is one that is considered reasonably sufficient to ensure a person does not flee before their trial, and it usually depends on the following three factors:

  • Severity of the crime
  • Defendant’s flight risk
  • Defendant’s risk to the community if released from jail

If bail is deemed too high, the Constitution and a federal statute known as the Bail Reform Act, provide defendants with the right to request a bail reduction through a special hearing. If a defendant cannot afford to pay for bail, and it can be shown that they are not a flight risk or a danger to the public, an attorney can argue that the imposed amount is equivalent to a denial of bail. In the bail reduction hearing, the court must consider this argument, but there is no rule stating that bail should be easy to pay.

Whether you or your loved one faces excessive bail, our Boston criminal defense lawyer at Brad Bailey Law can provide you with the representation needed during bail hearings and throughout the criminal process. If you’re ready to discuss your case, call (617) 500-0252 or contact us online today.

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