Judges set bail based initially on a "bail schedule," but they can raise or lower the amount, based on the circumstances of the case.
Judges ordinarily set a bail amount at a suspect’s first court appearance after an arrest, which may be either a bail hearing or an arraignment. Judges normally adhere to standard practices (for example, setting bail in the amount of $500 for nonviolent petty misdemeanors). However, judges can raise or lower the standard bail, or waive bail altogether and grant release on the defendant's "own recognizance," or O.R., based on the circumstances of an individual case.
(For related information, see Can you appeal a judge's bail order?)
Defendants do not need a lawyer to to arrange for bail. They can either post cash bail personally, or phone a bail bond seller and arrange for a bond. Relatives or friends can come to a jail or court and post cash bail for an arrested person or purchase a bond from a bail bond seller.
Factors That Influence Bail Amounts
In addition to the seriousness of the charged crime, the amount of bail usually depends on factors such as a defendant’s past criminal record, whether a defendant is employed, and whether a defendant has close ties to relatives and the community.
Judges may legally deny bail altogether in some circumstances. For example, if another jurisdiction has placed a warrant (hold) on a defendant, a judge is likely to keep the defendant in custody at least long enough for the other jurisdiction to pursue its charge. And bail may be denied to a defendant who is likely to flee the jurisdiction before the case concludes.
Example: Rosie Olla is arrested and charged with managing a large prostitution ring. Rosie is a naturalized American citizen born in Spain, and her family still lives in Barcelona. While searching Rosie after her arrest, the police found that she was carrying a passport and $5,000 in cash. Under these circumstances, a judge will probably be very reluctant to set bail for Rosie. Her family background and the fact that she was carrying a passport and a large amount of cash suggest that Rosie may flee to Spain if she is released on bail. Unless Rosie can explain to the judge why she was carrying the passport and cash, and can also demonstrate strong ties to the local community, a judge is likely to deny her request for bail.
In many areas of the country, defendants can post bail with the police even before they are brought to court for a bail hearing or an arraignment. Many jails have posted bail schedules, which specify bail amounts for common crimes. An arrested defendant can obtain release immediately after booking by paying the amount of bail set forth in the jailhouse bail schedule. Bail schedules can vary considerably according to locality, type of crime, and residency.
As a general rule, bail for offenses classified as felonies is five to ten times the bail required for misdemeanors. The more serious and dangerous the crime, the higher the amount of bail is likely to be. As a general rule, a jailhouse bail schedule is inflexible. The police will not accept bail other than as set forth in a schedule; suspects wanting to pay less must go before a judge.
As an alternative or in addition to jailhouse bail schedules, some areas have duty judges. A duty judge is available to fix bail over the phone, without the necessity for a formal court hearing. Like a jailhouse bail schedule, using a duty judge is an option for arrested persons who are anxious to bail out of jail before going to court.
Police Practices That Affect Bail Amounts
Unfortunately for many suspects who want to bail out of jail quickly, the police tend to arrest suspects for the most serious criminal charge that can possibly be supported by the facts at their disposal. For instance, the police may treat possession of a small amount of marijuana (a misdemeanor in most states) as an arrest for possession of marijuana with intent to sell (a felony in all states). Even though such a charge will almost certainly be reduced to a misdemeanor later in the case, it is a felony for the purposes of the bail schedule, and bail will be set accordingly.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
When you're arrested in your home, a limited search by the police is permissible.
Police may search the person arrested and the area within that person’s immediate control. Immediate control is interpreted broadly to include any place a suspect may lunge to obtain a weapon. If the alleged crime is particularly violent, or if the police have reason to believe other armed suspects may be in the residence, the police may do a protective sweep to search any place such accomplices may be hiding. Also, while they are making a lawful arrest or protective sweep, the police may typically search and seize anything that is in plain view and appears to be related to criminal activity.
Looking for Accomplices
Police officers can make protective sweeps following an arrest (Maryland v. Buie, U.S. Sup. Ct. 1990). When making a protective sweep, police officers can walk through a residence and make a cursory visual inspection of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can legally seize contraband or evidence of crime that is in plain view.
Example: Police officers have warrants to arrest Fox and Mulder for armed bank robbery. Fox and Mulder live together in a house. Officers Spock and Kirk stake out the house and arrest Fox coming up the driveway. With Fox in custody, Officer Spock goes into the house to conduct a protective sweep. Spock goes into a bedroom, lifts up a mattress and seizes a gun hidden between the mattress and the box spring. Witnesses later identify the gun as the one used in the bank robbery. Spock did not lawfully seize the gun. Because Fox and Mulder lived together, Fox was arrested outside the house, and they were suspected of committing a violent crime together, Spock probably had the right to make a protective sweep to look for Mulder. However, although Spock had a right to look under the bed, Spock had no right to lift up the mattress because nothing suggested that Mulder might be hiding between the mattress and box spring. After making sure that Mulder wasn’t in the house, the officers should have secured the house and gotten a search warrant.
Searching Guests in a Home
Police sometimes search not only the arrested person, but guests who are also present. Whether such a search is legal depends on why the guests are there. If they are there for purely social reasons or to spend the night, they are probably protected against unreasonable searches and seizures to the same extent as the homeowner or tenant. However, if the guests are there for a brief commercial transaction or an illegal purpose and are not staying overnight, then they do not have the same privacy rights as social overnight guests and may not be able to successfully challenge a police search that took place in their host’s home (Minnesota v. Carter, U.S. Sup. Ct. 1998).
Example: Mark hosts a weekly poker game at his apartment. One night the game included his neighbor Bobby. After a neighbor complained about a strange smell coming from Mark’s apartment, the police arrived and, although they didn’t have a warrant, searched the premises. In a cabinet in the bathroom, they found a baggie of illegal drugs belonging to Bobby. Bobby is arrested and charged with possession of illegal drugs. Bobby cannot exclude the drugs from evidence. As a temporary guest, Bobby has no privacy right in Mark’s apartment.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
Updated by Janet Portman,
What is House Arrest?
House arrest involves being confined to your primary residence rather than going to prison or juvenile detention. Seen as a more affordable alternative to traditional imprisonment, especially for less dangerous offenders, house arrest allows offenders to earn income, maintain family and other relationships, and attend necessary probation appointments and rehabilitation treatment. Home confinement can also involve curfews, where offenders must be home by a certain hour, and when they are not permitted to go out in the dark.
We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us.
District Court’s Statement During Plea Colloquy Regarding
Immigration Consequences of Plea Did Not Automatically
Foreclose Ineffective Assistance Claim
United States v. Batamula
2015 WL 3477473 (5th Cir. 2015)
A look at the constitutional due process rights of youth in juvenile court cases.
Minors in juvenile court delinquency proceedings do not have the same constitutional rights as those given to adults in regular criminal court cases. In fact, prior to the 1960s juveniles had few due process rights at all. But as juvenile court proceedings have become more formal, states and courts have strengthened juveniles' constitutional rights. (To learn more about the unique nature of juvenile court cases, see Nolo's article Juvenile Court: An Overview.)
Below is a summary of the due process rights that do and do not apply to juveniles in delinquency proceedings. Some of these rights derive from U.S. Supreme Court cases -- and therefore apply to all states -- while other rights vary by state.
Probable cause needed to search a minor. Police officers must have probable cause to search and arrest a minor who is suspected of violating a criminal statute. However, public officials in quasi-parental relationships with minors -- like school personnel -- need only "reasonable suspicion" of wrongdoing rather than probable cause to temporarily detain and search minors. (To learn more about probable cause, see Nolo's Criminal Arrests & Interrogations FAQ.)
Right to a phone call. Usually, a minor is allowed to make at least one phone call if they are in custody and not likely to be released quickly. The minor can call a parent or guardian, who in turn can contact an attorney. Or the minor can contact an attorney directly. By asking to speak with a parent or attorney, the minor invokes his or her Miranda rights. So, if police ignore the minor's request to consult a parent or attorney, anything the minor says to the police after that will likely be inadmissible in juvenile court. (To learn more about Miranda in the context of adult criminal proceedings, see Nolo's article Miranda Rights: What Happens If Police Don't 'Read Your Rights.')
No right to bail. Juveniles do not have a constitutional right to seek bail. But many juveniles are released to their parents or guardians prior to arraignment in juvenile court.
The right to counsel. In 1967, the U.S. Supreme Court (in a case called In re Gault) ruled that minors have the right to an attorney in juvenile proceedings. If a minor cannot afford an attorney, he or she has the right to be represented by a state-appointed attorney.
The right to notice of the charges. In re Gault also requires that a juvenile be provided with notice of the delinquency charges he or she faces.
The right to confront and cross-examine witnesses. Even though a juvenile adjudication hearing is not a formal criminal trial, a minor has the right to confront and cross-examine witnesses -- meaning the minor gets a chance to question (through an attorney) the people called to testify by the state, and to challenge their testimony.
The privilege against self-incrimination. Minors in juvenile court proceedings have a right to assert their Fifth Amendment privilege against self-incrimination. This means that a minor cannot be forced to testify against him or herself. (To learn more about the right against self-incrimination, see Nolo's article Defendants' Rights During Trial: The Bill of Rights.)
No (or limited) right to a jury trial. Most states do not allow jury trials in juvenile delinquency cases. The few states that do allow jury trials often limit them to only certain types of juvenile cases. (See Do juveniles have a right to trial by jury?)
The right to have charges proved beyond a reasonable doubt. The U.S. Supreme Court has ruled that if a juvenile faces incarceration or adjudication as "delinquent" as a result of juvenile court proceedings, then the state must prove the charges against the juvenile "beyond a reasonable doubt." If those penalties are not at issue, the state need only prove the charges by a "preponderance of evidence" standard.
For more information about juvenile court, the rights of minors in juvenile proceedings, and how to help if you are the parent of a minor in trouble with the law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). And if you need a lawyer experienced with the juvenile justice system, you can turn to Nolo's trusted Lawyer Directory to find an attorney near you.
If the police roughed you up, read here.
Excessive force by the police during an arrest violates the Fourth Amendment to the U.S. Constitution. A suspect who has been a victim of excessive force may have a viable lawsuit against the arresting officers and even the municipality that employs them.
Civil, not Criminal
A “tort” is a legal term for a civil wrong (as opposed to a criminal wrong) that resulted in some kind of injury to the plaintiff. Many civil claims against police officers involve the torts of assault and battery. Occasionally, these claims involve the tort of negligence.
Most lawsuits against police officers involve the Civil Rights Act of 1871. (42 U.S.C. § 1983.) A section 1983 claim alleges that the defendant, “under color of law,” violated the plaintiff’s constitutional rights. The use of excessive force constitutes a valid claim under section 1983 because it violates the Fourth Amendment prohibition against “unreasonable seizures.” (For information about other kinds of police lawsuits, see Police Conduct and Emotional Distress and Taser Lawsuits Against the Police.)
Police officers are generally allowed to use whatever force is necessary to make an arrest or defend themselves. In most jurisdictions, when a jury has to decide whether an officer used more force than was necessary to make an arrest, the judge instructs it to consider what a reasonable person with the officer’s knowledge would have deemed necessary under the circumstances.
So, an arresting officer is allowed to use more force to arrest a resisting suspect than if the suspect were compliant, and may use deadly force if threatened with death or great bodily harm. The amount of force an officer may lawfully use against a fleeing suspect depends on whether the person appears to have committed either a felony or a misdemeanor. (For more information on resisting arrest, see Resisting Arrest: Laws, Penalties, and Defense and Resisting Arrest When Police Use Excessive Force.)
Whether an officer’s use of force was excessive is so dependent on the facts that appellate courts often defer to juries’ conclusions in that regard.
Burden of Proof
In a civil suit, the burden is usually on the plaintiff to prove liability by a “preponderance of the evidence” (meaning “more likely than not”). A defendant—in this case an officer—who raises a defense of justification must prove by the same standard that there was a legal excuse for the conduct in question. (The preponderance-of-evidence standard is much lower than that in a criminal case: “beyond a reasonable doubt.”)
But many states treat excessive force cases somewhat differently than typical lawsuits. In some jurisdictions, there is a presumption that the officer acted with the necessary level of force that the plaintiff must overcome. Additionally, some impose a higher burden of proof than “preponderance of the evidence,” instead requiring the plaintiff to prove a claim of excessive force by “clear and convincing evidence” (a standard higher than “by a preponderance of evidence” but lower than “beyond a reasonable doubt”).
All states agree that the plaintiff being guilty of the crime for which the officer arrested him isn’t a valid defense for the officer. But, by the same token, a plaintiff who can prove innocence is more likely to be able to show that the officer’s use of force wasn’t necessary.
Although most jurisdictions have “qualified immunity” statutes, which can relieve public employees of liability for injuries they cause in the course of their duties, many courts (but not all) have held that these statutes don’t apply to claims of excessive force against police officers.
But another potential challenge for citizens who want to sue the police and the city or county is governmental immunity: States are immune from suit by private citizens in federal court under the 11th Amendment to the U.S. Constitution. Additionally, many states have laws immunizing municipalities from equivalent suits. Ultimately, whether the government has a viable “immunity” claim depends on the facts of the case and the jurisdiction it’s in.
Get Legal Help
The law governing excessive force suits can vary greatly from state to state and from state to federal court, especially on issues like the burden of proof and immunity. If you or someone close to you has been the victim of excessive force by the police, seek the help of an experienced attorney. Only a knowledgeable lawyer will be able to advise you of the applicable law and protect your rights.
The Morales Law Firm would like to share this article: Resisting Arrest When Police Use Excessive Force published by NOLO. For more information visit www.NOLO.com.