Can a Judge Deny Bail Altogether? Rare but Yes

Most people arrested for a crime have a right to be released on bail while their case proceeds through the criminal justice system. However, in some circumstances, a judge can deny bail altogether and order the defendant to be held in jail until trial. Though rare, situations where bail can be fully denied do exist.

What is Bail?

Bail is an amount of money set by the court that allows a defendant to be released from jail while their criminal case is pending. By paying the bail amount, usually through a bail bondsman, the defendant agrees to show up for all required court appearances. Bail is intended to ensure the defendant appears in court without the need to keep them incarcerated before trial.

When Can a Judge Deny Bail?

Most of the time, judges are required to set some reasonable bail amount. However, there are limited exceptions where a judge has discretion to deny bail altogether:

• Defendants charged with capital crimes punishable by death may be denied bail when the evidence of guilt is evident or the presumption of guilt is great. This includes crimes like murder, treason, and espionage.
• If the defendant poses a danger to the community or specific persons, a judge may deny bail. This often occurs in domestic violence, stalking, or terrorism cases.
• If the judge believes the defendant will flee or fail to appear in court if released, they may deny bail to ensure they remain in custody. Defendants with minimal community ties or a history of failing to appear are at risk.
• In rare cases, bail can be denied if no release conditions would properly ensure public safety or the defendant’s return to court. This tends to occur with defendants seen as extremely high-risk.

Constitutional Right to Bail

The Eighth Amendment to the U.S. Constitution prohibits excessive bail. Courts have generally interpreted this as providing most defendants charged with non-capital crimes a constitutional right to have some reasonable bail set. As a result, complete denial of bail is uncommon outside of the limited exceptions noted above.

In federal court, the Bail Reform Act specifically lists the circumstances where federal judges may deny bail for crimes like: drug trafficking, terrorism, sexual abuse, and other serious violent felonies. States often have similar laws guiding when bail can be denied at the state level.

Challenging Bail Denial

If a judge denies bail altogether, the defense attorney may file an emergency appeal and request a hearing to reconsider the bail decision. They will argue the denial violates the defendant’s constitutional rights or does not meet the legal standards in that jurisdiction for complete denial of bail.

At the bail review hearing, the judge will hear arguments from the prosecutor and defense attorney regarding the flight risk and dangerousness of the defendant. More evidence and information may be presented in support of setting some bail amount. However, getting a bail denial overturned is challenging.

Implications of Bail Denial

The implications of having bail denied can be significant for a defendant. Spending months or years in jail awaiting trial makes preparing a defense more difficult. Maintaining employment and stability in one’s life also becomes nearly impossible. The psychological impacts of incarceration take a toll as well.

However, judges seldom deny bail without good reason. The safety of victims and the community at large is usually foremost in their decision-making. Given the presumption of innocence and right to reasonable bail, judges view complete bail denial as a last resort.

Alternatives to Bail Denial

Rather than denying bail, judges have alternatives to reasonably ensure public safety and the defendant’s appearance in court:

• Impose release conditions like GPS monitoring, stay away orders, counseling, etc.
• Set a higher money bail amount.
• Place restrictions on travel or associations.
• Require in-patient treatment for defendants with addiction/mental health issues.

Using release conditions allows most defendants to be released while addressing risks that would otherwise warrant bail denial. The conditions imposed must be the least restrictive to reasonably mitigate the concerns presented by the defendant.

The Bottom Line

Complete denial of bail is uncommon and only permitted in limited, serious circumstances in most states. Judges consider it a last option when no release conditions would adequately ensure public safety and the defendant’s appearance in court. Still, for a small number of extremely high-risk defendants, spending the pre-trial period in custody is viewed as necessary.