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Anyone who is arrested and taken to jail likely wants to return home as soon as possible. Unfortunately, in many cases, there are steps that need to be taken before the law enforcement agency will simply let you go. One of these steps is often making bail.

A criminal case can take months—or even years—to complete and it should not be necessary for a defendant to sit in jail for the duration of the case. The concern is, of course, that if police let you out of jail, you will run and not appear in court and will be difficult to ever track down. Bail is an amount of money paid to the law enforcement agency as a type of insurance that, if they release you, you will show up at required court hearings. If you do show up to your court dates, the bail will be returned to you or will be applied to any fines if you are convicted. If you fail to appear, you forfeit the bail you posted.

Constitutional requirements for bail

The 8th Amendment of the United States Constitution1 states that no individual shall have excessive bail set during their pretrial detention. “Excessive” has been interpreted by the courts to mean higher than needed to be reasonably sure the defendant would appear in court. The amount of bail set should not be higher than necessary based on the following factors:

  • The severity of the alleged crime
  • The threat of harm to the community
  • The risk that the individual will attempt to flee

Additionally, the Supreme Court has stated that unnecessarily high bail or denial of bail violates a defendant’s right to due process under both the 5th2 and 14th Amendments.3 In order to satisfy these constitutional requirements, a court must have a “compelling government interest” for refusing to allow bail.

Bail reduction hearings

If a court sets an excessive amount of bail, an experienced criminal defense attorney can request and represent you at a bail reduction hearing. Defendants have the right to this type of hearing under the Bail Reform Act. At this hearing, your attorney can argue that your bail should be decreased for several reasons. The reasons include that you are not a flight risk, that you are not a danger to the community, or that the bail is so high that it is essentially a denial of bail since there is no way that you could ever afford to pay it. The prosecution can also request that the judge increase the amount of bail and it is important to have a defense attorney who knows how to argue against such an increase.

A skilled defense lawyer will also know how to suggest other conditions of release to justify lowering your bail. These include restrictions on travel, drug testing, wearing an ankle bracelet to monitor your location, house arrest, among others.

Even nonviolent offenders may have bail issues

Federal authorities recently arrested five men, including one from Philadelphia, on suspicion of a complex five-year-long computer hacking and insider trading scheme that resulted in fraudulent investment earnings of more than $30 million. Prosecutors requested that the court completely deny bail to these defendants because, though their offenses were not violent, they allegedly have strong ties to the Ukraine. Ukraine does not have an extradition treaty with the United States, so the prosecutors stated this creates a substantial enough flight risk to warrant refusal of bail. The court had initially set bail for the Philadelphia man at $100,000 though he is still in jail pending a hearing regarding the government’s request.

Bail can be refused or excessive in many situations. It is important to have an attorney on your side who understands the constitutional and procedural requirements for bail and how to argue for reduced bail so that you spend as little time behind bars as possible.

Consult with an experienced Philadelphia criminal defense lawyer today

If you have been arrested, it is highly important that you contact a skilled Philadelphia criminal defense attorney who understands how to fight for your rights during the bail process. Attorney Brian Zeiger has successfully represented numerous clients in bail reduction hearings and has many tools to get you out of jail as soon as possible. No one should have to wait behind bars for longer than necessary so anyone who is in custody should call The Zeiger Firm as soon as possible at 215-546-0340 to find out how we can help you.



Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.