What is Bail?
If you have been arrested or are facing criminal charges, one of the first issues that you will face is the setting of bail. Bail is the amount of money that you are required to pay in order to be released prior to trial. If you cannot make bail, you will be held in custody until the case is resolved, so fighting for a low bail amount can be one of the most important issues in a criminal case. Unlike New Jersey and the Federal system, Pennsylvania requires defendants to post cash bail. This means that most defendants must pay money in order to be released.
Bail is extremely important for a number of reasons. A defendant who makes bail will be released pending trial and have a number of significant benefits. For example, the defendant will be able to be a much more active participant in defending the case as the defendant will be able to review the discovery, help locate evidence and witnesses, and prepare for trial. Further, a defendant who has made bail and been released will be able to continue working and living a normal life while waiting for the case to be resolved.
On the other hand, a defendant who cannot afford bail could spend months or even years in the county prison awaiting trial. The defendant could lose his or her job, home, and contact with friends and family. It will also be much more difficult for the defendant to review all of the discovery, particularly if the discovery is lengthy or the Commonwealth has video evidence. Additionally, the fact that the defendant is in custody makes it much harder to reject a plea deal that would get the defendant out of jail even if the defendant is innocent. In many cases, completely innocent people plead guilty to crimes they did not commit because they simply cannot afford to wait any longer for a trial while they are in jail.
If you have been arrested and are facing criminal charges, it is extremely important that you retain a criminal defense lawyer who will aggressively challenge any efforts by the prosecution to have bail set at a level that you cannot afford. It is also important to retain a lawyer who will continue to fight for bail reductions at each court date in the event that you are unable to make the initial bail.
When is bail first set?
The defendant’s bail is initially set at the preliminary arraignment. The preliminary arraignment is the first step in every criminal case in Pennsylvania. In Philadelphia, preliminary arraignment occurs after a defendant has been arrested. The defendant will typically be held at the police station and processed for 10-20 hours, and the defendant will then be brought before a commissioner for a video hearing. If the defendant has already retained counsel, then the defense lawyer may be present for the preliminary arraignment. If the defendant has not retained counsel, then the defendant will be represented by a paralegal or legal intern from the public defender’s office. The Commonwealth is represented at preliminary arraignment by a paralegal, as well. Both sides may make recommendations and arguments as to what the bail should be, and the commissioner will then set bail at a given amount.
If the defendant can post 10% of that amount, then the defendant will be released. If not, the defendant will be held in custody pending the next court date or the posting of bail. Philadelphia Police almost always initiate cases by making arrests; they rarely notify a defendant of charges and give the defendant a chance to turn themselves in. In the suburban counties, however, a detective may initiate a case with a phone call informing the defendant of an arrest warrant or a summons. The defendant may then retain a criminal defense lawyer, go to the police station, spend a couple of hours getting processed, and then appear before the local Magisterial District Justice for bail to be set.
How is the initial bail determined?
The initial bail is determined by the commissioner or magistrate after hearing argument from defense counsel and the prosecution. The magistrate will typically consider a number of factors, including:
- The seriousness of the charges,
- The bail guidelines (although they have not been updated in years and are often disregarded)
- The strength of the evidence,
- The defendant’s criminal record or lack thereof,
- The defendant’s employment status,
- Whether the defendant voluntarily turned themselves in or was arrested,
- The defendant’s ties to the community and whether the Court was able to verify the defendant’s address, and
- Whether the defendant has retained counsel.
In general, felonies, crimes involving weapons such as firearms, and violent crimes like Robbery and Aggravated Assault are far more likely to result in higher bail. Misdemeanors and less serious, non-violent felonies may result in low bails or even ROR or SOB bail. Gun charges, in particular, result in particularly high bail amounts in Philadelphia. For example, even defendants with strong ties to the community, jobs, and no prior record often face the prospect of bail being set at $50,000 or more for a weapons offense. Fortunately, an experienced criminal defense attorney will often able to have the bail reduced below that amount.
ROR stands for Released on Recognizance, which means the defendant does not have to pay anything to be released.
SOB means Sign On Bond, which means that the defendant could owe money if the defendant fails to appear for court, but the defendant does not have to pay anything to be released. For example, if bail is set at $50,000 Sign On Bond, the defendant would be required to sign an agreement to pay $50,000 if the defendant flees and does not appear for court, but the defendant would not be required to pay anything. If the defendant cannot afford the bail set by the magistrate, then the issue may be appealed to a higher ranking judge or a motion may be made at a subsequent court date.
How can I get my bail reduced?
If the defendant cannot pay the initial bail amount, then bail can be addressed at almost every court hearing. In Philadelphia, the first listing of the preliminary hearing will typically take place within two or three weeks of preliminary arraignment. Motions for bail reductions may be made orally at every listing of the preliminary hearing. This means that if the case is continued or even if the defendant is held for court at the preliminary hearing, then the defense may make a bail motion and ask the Municipal Court judge, who ranks higher than the bail commissioner, to reduce bail to something the defendant can afford.
If the Municipal Court judge denies the bail motion, then the defense attorney may make the motion again at the next listing assuming that there has been some change in circumstances. The passage of time will often be considered a change in circumstances. This is particularly true if the prosecution is not ready to proceed.
While a case is in the Municipal Court for the preliminary hearing or if a Municipal Court judge denies a bail motion, the defense may file a written Motion for a Bail Reduction in the Court of Common Pleas. Once a written Bail Motion has been filed, the Court of Common Pleas will typically hold a hearing on the motion within five business days. The Common Pleas Motions Judge has the power to overrule the Municipal Court Judge or bail commissioner and reduce the bail.
The bail motion will often sound much the same as the arguments made at preliminary arraignment. However, because the defendant will have advance notice of the bail hearing, it is usually possible to be more prepared for it and have friends and family present so that the judge can see that the defendant has ties to the community. The presence of friends and family can be very helpful in terms of getting bail reduced. The defense will also have time to obtain helpful documentation such as proof of employment or education.
Are there crimes for which there is no bail?
The Pennsylvania Constitution provides that all defendants are entitled to bail with the exception of defendants who are charged with homicide. Because homicide may be a capital offense or carry a mandatory life sentence, defendants who are charged with homicide are not entitled to bail.
Additionally, a court may deny bail or later revoke bail if the prosecution can prove that “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.” If bail is revoked or denied, then the defendant cannot be released until the case has been resolved or a judge reconsiders the ruling no matter how much the defendant can afford to pay. However, in some instances, it may be possible to ask a judge to reconsider a decision to revoke or deny bail.
How much of the bail do I have to pay?
In most cases, the defendant is required to pay 10% of the bail amount. For example, if the defendant’s bail is set at $50,000, then the defendant would usually be required to pay $5,000. If the bail is set at $50,000 SOB, then the defendant would not have to pay anything. If the defendant has some money but cannot quite come up with 10%, then it may be possible to hire a bail bondsman. The bail bondsman will usually charge something less than 10% up front to post bond, but the bondsman will keep a larger percentage in the long run. The bail bondsmen could also require more than 10% but allow for monthly payments in order to make it more affordable.
What is a 600(B) motion or a Speedy Trial motion? How long can a defendant be held before trial if the defendant cannot afford bail?
If the Municipal Court and Common Pleas judges all deny the regular bail motions, there is one more motion which can be filed after the defendant has been held for 180 days of time which is not due to defense continuance requests. If the defendant has been held for 180 days, then the defense may file a motion under Pennsylvania Rule of Criminal Procedure 600(B). Rule 600(B) provides:
(B) PRETRIAL INCARCERATION
Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of
(1) 180 days from the date on which the complaint is filed; or
(2) 180 days from the date on which the order is filed transferring a court case from the juvenile court to the trial or criminal division; or
(3) 180 days from the date on which the order is filed terminating a defendant’s participation in the ARD program pursuant to Rule 318; or
(4) 120 days from the date on which the order of the trial court is filed granting a new trial when no appeal has been perfected; or
(5) 120 days from the date of the written notice from the appellate court to the parties that the record was remanded.
This means that the Court is required to reduce bail to nominal bail and release the defendant if the defendant is unable to make bail after 180 days. The Court may attach various conditions such as house arrest with electronic monitoring and reporting to a Pre-Trial Court Officer, but the Court is supposed to let the defendant out of jail pending trial.
In cases where the Court grants the 600(B) motion, it is very common for the prosecution to then move to revoke bail and argue that the defendant is such a danger to the community or such a flight risk that bail should be revoked. In that case, the judge will have to decide based on the nature of the allegations and the defendant’s background whether the defendant should be released on nominal bail or whether the defendant’s bail should be revoked. Unless the allegations are particularly horrific or the defendant has an extremely bad criminal record, then most judges will grant the 600(B) motion and release the defendant on house arrest. Therefore, it is extremely important to file the 600(B) motion at the earliest possible date as every day after that date is time which the defendant may not have to spend in custody.
We Can Help With Bail Motions in Philadelphia and the Surrounding Counties
If you are facing criminal charges, we can help. We recognize the importance of being home with your friends and family while you are fighting a case, and we will aggressively fight to have the lowest possible bail set. If necessary, we will fight for bail reductions at every opportunity. We have won countless motions to reduce bail as well as numerous Speedy Trial/Rule 600(B) motions for nominal bail. Call 267-225-2545 today for a free criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.