When defendants are charged with a crime, remaining at home while they await trial is not always a given. Defendants must be released pending trial, and in some cases, judges may order that they be held in custody while they are awaiting trial. The bail hearing is one of the most important moments in the early stages of the criminal justice process.
Some Defendants Are Released Without Bail
Once the defendant is charged with a crime, a judge will decide what happens before the trial. Many defendants are released on their own recognizance pending the trial, meaning that they are trusted to come back to court on the date of their hearing to face the charges. In this case, the defendant is not required to pay any bail. In Wisconsin, this type of release is called a “signature bond” because the defendant promises through their signature that they will come back to court for the trial.
This type of release is used for more minor misdemeanors. For more serious alleged crimes, the legal system will demand some assurance that the defendant will show up for the trial in the form of a cash bond that they will forfeit if they do not return for trial. For misdemeanors, law enforcement has the power to set bond right after the arrest and processing. Once this cash bond is posted, the defendant can be released from custody pending trial.
Bail for Felonies Is a More Difficult Topic
When the defendant is charged with a more serious felony, the decision about bail is in the hands of a judge, who will make a decision on bail at the arraignment. Law enforcement cannot hold a defendant indefinitely without holding a bail hearing because it is a violation of the defendant’s legal rights. The bail hearing must happen shortly after the arrest, although there is no hard and fast time deadline. Usually, the outer limit for holding the bail hearing is a few days after the arrest.
The judge will have one of three options when considering bail options:
- Release the defendant on a signature bond (when the defendant is charged with a serious felony, this option is rare)
- Release the defendant on a cash bond that the judge will set on the spot
- Order the defendant to be held until trial
Factors That a Judge May Consider in Determining Bail
One of the major considerations for the judge is whether the defendant presents a flight risk. They might look at whether the accused has ties to the community or significant ties in another area that may support them if they fled. If a defendant is wealthy with overseas connections, they may be more of a flight risk.
In addition, the judge must also consider the risk that the defendant poses to the community at large. If the defendant is charged with homicide or a sexual assault, there is more of a chance that the judge may find them to be a risk.
Even if the accused is not charged with a crime such as murder, a judge may consider their prior criminal record in determining whether they are a danger to the community. If the defendant is on probation for a prior crime or has a long criminal record, there is more of a chance that they will be held. However, once the judge decides that they will grant bail, they do not have much leeway in determining the amount of bail. There is currently a push in the Wisconsin Legislature to allow judges to have more discretion in setting the amount of bail in light of a recent mass shooting committed by a defendant who was out on a $1,000 cash bail that was deemed to be far too low. However, high bail amounts often disproportionately impact low-income defendants, who must remain in jail because they cannot afford to pay.
Bail Also Means Conditions of Release
Even if a defendant is released on bail, they will likely be subject to a number of conditions that will restrict what they can do while awaiting trial. Violating these conditions can lead to bail being revoked and the defendant being returned to custody. For example, the defendant may be required to remain within a certain geographical area. If the defendant is charged with a crime that involves a computer, they may be ordered to remain off the internet. For crimes involving violence, the defendant may be ordered to remain a certain distance from the alleged victim.
Your attorney can make a difference at this early stage of the trial. When the judge is conducting the pretrial detention hearing, you have the right to be heard and argue why you should be released pending trial. Without an attorney, there is a higher likelihood that you can be kept in custody. In addition, your attorney can describe your own situation to the judge when they are setting the conditions of pretrial release. For example, very restrictive conditions can cause you financial hardship or hinder your ability to be around your family. Your lawyer will not only advocate for bail but will also seek the least restrictive possible conditions.
If bail is granted, you must be careful to observe all conditions. Violating them can have significant consequences. You may be returned to custody in advance of trial if bail is revoked.
Contact an Appleton Criminal Defense Lawyer
If you have been arrested and charged with a crime, the attorneys at Hogan Eickhoff are available to you at all times to give you the legal advice that you need. The best time to call us is right after you have been arrested because we will work to protect your legal rights. We believe that everyone is entitled to the best legal defense, no matter the alleged crime. You can reach out to us online or call us at (920) 450-9800 to schedule your free initial consultation. While the criminal justice process is stressful, you get some peace of mind when you hire an attorney.