Bail Motions

The Excessive Bail provision of the Eight Amendment to the United States Constitution, which is incorporated to the states through the Fourteenth Amendment to the United States Constitution, states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This fundamental right allows an accused to be free before conviction, allowing the defendant to prepare a defense and preventing unjust punishment of the wrongfully accused. It would seem that prohibiting excessive bail would mean that bail should be made available and affordable to everyone. That is not always the case.

While there are cases where a court will not require any amount for bail and simply release the defendant on their own recognizance (known as being “ROR’ed”), criminal defendants frequently are incarcerated at the beginning of the case and want immediately to bail out. Sometimes, the court hearing the case will not have granted bail. More typically, a court will set an initial bail that is so high that the defendant cannot possibly post it. In either event, the defendant must retain an attorney to apply for bail or a bail reduction.

Generally speaking, courts consider two factors when setting or reducing the amount of the bail. These are whether the defendant is: (a) a danger to the community, or (b) a flight risk. As to the first factor, a court will review any prior convictions the defendant may have. Defendants with numerous prior convictions, or prior convictions for relatively serious offenses, can expect a higher bail. Regarding the second factor, a court will assess the number and nature of the defendant's ties to the local community. Defendants with significant community ties will be viewed as less likely to flee the jurisdiction while their case is pending, and should therefore receive a lower bail.

Some defendants come before a court with multiple sets of charges. Depending upon the circumstances, the court may impose multiple bails, or set one bail for all of their cases.

Once the dollar amount of the bail is set, it can be posted in different forms depending upon the circumstances of the case. A court may sometimes require a defendant to post the full amount of the bail in cash. Defendants may also be allowed to use real property to secure a bail instead of cash.

A court can also allow a defendant to post bail by means of a bail bondsman. A bail bond is, in essence, an insurance policy that will pay if the defendant fails to appear in court. The fee that the defendant pays to the bondsman is analogous to a premium. These fees typically range from seven to ten percent of the face amount of the bail. Some bail bondsmen may be more willing than others to negotiate the size of the percentage in a particular case. We typically advise our clients to avoid using the first bail bondsman who learns about their case. The more prudent course is to seek a referral to a particular bail bondsman from someone who previously
used them.

Procedures for bail applications can vary greatly between different courts. For example, defendants in Federal cases in New Jersey typically cannot use a bail bondsman to post bail, and must secure their bail with real property. In contrast, the State courts in New Jersey are considerably more flexible. Depending upon the case, a defendant in the New Jersey Superior Court may be able to post bail by means of cash, a bail bond or
real property.

Additionally, in New Jersey state courts, some criminal defendants are eligible for what is usually referred to as a “ten percent cash alternative.” The defendant can bail out by posting ten percent of the face amount of the bail in cash with the court. The defendant will then receive that money back at the conclusion of the case. In these situations, a bail bondsman is not necessary; the defendant or their family deals directly with the Court. Defendants with the ten percent option can therefore save a considerable amount of money, since they do not have to pay any fees to a bondsman.

In light of the foregoing, it is important to retain an experienced attorney who is familiar with the bail procedures in the court hearing the case. New Jersey criminal defense attorney Christopher J. Cifrodello has considerable experience representing defendants in connection with applications to set bail or reduce an excessive bail. If you or a member of your family requires representation in connection with setting or reducing bail,
contact us online or call 732-667-3764 for an initial consultation.