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  • Writer's pictureClayton T. Robertson

Bail Factors

By Clayton T. Robertson (Criminal Defense, Civil Litigation & Civil Rights Attorney)

In a prior post (here), I discussed the reasons why staying or getting out of custody pending the resolution of your case is so important in a criminal matter.

In this post, I itemize several of the factors a criminal defense attorney should consider when evaluating or making a bail reduction motion or own-recognizance ("OR") request to the court.

Not all of these factors will apply in any given case, but this is a fairly comprehensive list that should be evaluated:

- "Danger to Community" (Nature and Circumstances of the Offense Charged, Weight of the Evidence Against the Defendant, Likelihood of Conviction, Etc.)

- "Flight Risk" (Prior Failures to Appear, Prior Bench Warrants, Lack of Motivation or Ability to Flee, Etc.)

- Financial Resources and Ability to Pay (Rendering Amount of Bail Constitutionally Excessive)

- Additional Details of Current Offense (No Violence, Low-Level Offense, Cooperated with Police at Time of Arrest, No Attempt to Flee, Provided True and Accurate Name and Contact Information at Time of Arrest, No Indicia of Other Threats to Society, Etc.)

- Community Connections (Family Ties, Time in Area, Residential History and Current Status, Other Connections to Community, Etc.)

- Criminal History (Including Seriousness or Age of Past Offenses, Successful Completion of Prior Terms of Probation or Parole, No Other Open Criminal Cases, Etc.)

- Employment History (Including Gainful and Productive Current Employment as Productive Member of Society)

- Education History (Including Indicia of Academic Achievement and Honors)

- Medical or Other Conditions (Including Current Diagnoses Rendering Incarceration Pending Trial Problematic, Other Mitigating Physical or Mental Conditions Relevant to Offense, Etc.)

- Dependents (Children, Parents, or Others Who Rely Upon the Defendant for Comfort, Care, or Support)

- Public Service (Military, Etc.)

- Other Information Concerning Defendant's Character (Including Other Humanizing or Mitigating Details)

- Other Supporting Details (Hired Private Attorney, Personally Present in Court, Friends and Family Present in Court to Support Defendant, Etc.)

- Future Aspirations (Future Goals and Dreams to Humanize Defendant)

- Willingness to Agree to Other Terms of Release, If Necessary (AAs, SCRAM, Report to Probation, Etc.)


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