Criminal Law Article

Bail

The subject of this article is how and when judges set bail in Arizona. A criminal defendant who is required to post bail may pay the bond in cash or other property or may contract with a bail bondsman. To learn more about bail bonds, please see the “Bail Bonds” article on this website.

What is bail?

Bail is an amount of money or the equivalent value in property that a criminal defendant may “pledge” (promise) to a court to secure their release from custody before and during their trial.

The purpose of bail is to permit a defendant to go home, rather than remain in jail or prison, while awaiting their trial, while also ensuring that they will “appear” (show up) in court for all their required court hearings.

If a defendant is “released on bail” but fails to appear for their trial (or any other court proceeding), they will “forfeit” (lose) whatever amount they paid in bail. In other words, if a defendant “skips” or “jumps” bail, it will cost them financially.

In addition, if a defendant is released on bail but fails to appear in court when required, they will not only forfeit their bail but also:

• have a warrant issued for their arrest and

• may be charged with the additional criminal offense of “failure to appear”

If a defendant is released on bail and makes all their required appearances in court both before and during their trial, then whatever they pledged in bail will be returned to them.

What are the purposes of bail?

Both the Arizona Constitution and the Arizona Criminal Code describe the purposes of bail as:

• to assure that the person facing trial will appear in court

• to protect against the intimidation of witnesses

• to protect the safety of the victim, any other person, and the community as a whole

See Arizona Constitution, Article 2, Section 22(B): https://www.azleg.gov/viewDocument/?docName=http://www.azleg.gov/const/2/22.htm

See A.R.S. § 13-3961(B): https://www.azleg.gov/ars/13/03961.htm

How does a judge decide when a criminal defendant must post bail?

After a person is arrested, they must be taken to a “magistrate” (judge) for their “initial appearance” in court. At this initial appearance, the judge must determine if the criminal defendant should be released from custody.

The judge will consider the nature of the crime that the defendant is accused of committing. Under Arizona law, most criminal offenses are “bailable as a matter of right,” meaning that, unless the judge determines that the defendant should not be permitted to post bail for a very specific set of reasons, then the judge must determine the conditions under which the defendant may be released.

As a general rule, any defendant who is charged with a crime that is “bailable as a matter of right” must be released both before and during trial “on the defendant’s own recognizance” (without having to pay any bond) unless the judge determines “that such a release will not reasonably assure the defendant’s appearance or protect the victim, any other person, or the community from risk of harm by the defendant.”

See Arizona Rules of Criminal Procedure, Rule 7.2(a)(2): https://govt.westlaw.com/azrules/Document/NEB5B98E1E98D11E9BEFE89A994168F89?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

See A.R.S. § 13-3967(B): https://www.azleg.gov/ars/13/03967.htm

If the judge decides that “probable cause” exists to believe that the defendant has committed a serious felony for which release on bail is not allowed “because the defendant poses a substantial danger and no conditions of release will reasonably assure the safety of the victim, any other person, or the community,” then the judge must schedule a bail eligibility hearing in the superior court.

See Arizona Rules of Criminal Procedure, Rule 4.2(a): https://govt.westlaw.com/azrules/Document/N9BE7E0E0A2EC11DEA301E57D8E5330AC?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

The judge may not release any defendant who has been charged with a felony if the judge determines that (among other things):
• there is clear and convincing evidence that the defendant poses a substantial danger to the victim, any other person, or the community or, on certification by motion of the state, the defendant engaged in conduct constituting a dangerous crime against children or terrorism AND

• no condition or combination of conditions of release will reasonably assure the safety of the victim, any other person, or the community

See Arizona Rules of Civil Procedure, Rule 7.2(b)(2): https://govt.westlaw.com/azrules/Document/NEB5B98E1E98D11E9BEFE89A994168F89?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

What factors must a judge consider in determining if a defendant is eligible for bail?

In determining whether the defendant is eligible for bail, the judge must consider:

• the nature and circumstances of the offense charged, including whether the offense is a “dangerous offense” as defined by the Arizona Criminal Code

• the weight of the evidence against the defendant

• the history and characteristics of the defendant, including the defendant’s character, physical and mental condition, past conduct including membership in a criminal street gang, history relating to drug or alcohol abuse, and criminal history

• the nature and seriousness of the danger to the victim, any other person, or the community that would be posed by releasing the defendant on bail, including any threat to a victim or other participants in the judicial process

• the recommendation of the pretrial services program based on an appropriate risk assessment instrument

• any victim statement about the offense and release on bail

• any other relevant factor

See Arizona Rules of Criminal Procedure, Rule 7.2(b)(3): https://govt.westlaw.com/azrules/Document/NEB5B98E1E98D11E9BEFE89A994168F89?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

Does a criminal defendant have a right to post bail?

No. However, reasonable bail must be offered to the greatest extent possible. Under the Eighth Amendment to the United States Constitution, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Arizona Criminal Code similarly states that a person who has been charged with a crime “shall not, before conviction, be subject to more restraint than is necessary for his detention to answer the charge.”

See A.R.S. § 13-3972: https://www.azleg.gov/ars/13/03972.htm

As a general rule, the Arizona Constitution requires that everyone who has been charged with a crime must be permitted to post reasonable bail in order to secure their release while awaiting trial. This general right to post bail reflects the principle that pre-conviction confinement should be as limited as possible, and not a form of pre-conviction punishment.

What factors must the judge consider when deciding how to set bail?

According to the Arizona Criminal Code, the decision by a court to set bail must take many different factors into account, including, in addition to the criminal defendant’s overall “flight risk”:

• the views of the victim

• the nature and circumstances of the criminal offense for which the accused is facing trial (the more serious the crime, the higher the bail amount will be)

• the perceived risk to public safety that would result from releasing the accused back into the community

• the criminal history of the accused (the more extensive that history, the higher the bail amount will be, and bail may not be offered at all)

• whether the accused has a prior arrest or conviction for a serious offense or violent or aggravated felony or an offense in another state that would be a serious offense or violent or aggravated felony if committed in Arizona

• the length and depth of the community ties of the accused

• the family ties, employment status, financial resources, character, and mental condition of the accused

• the results of a risk or lethality assessment of the accused in a domestic violence context

• the weight of the evidence against the accused

• whether the accused is possessing or using any substance any illegal or dangerous drug

• the past record of appearance by the accused at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings

• whether the accused has entered or remained in the United States illegally

• whether the principal residence of the accused is in Arizona, in another state, or outside the United States altogether

See A.R.S. § 13-3967(B): https://www.azleg.gov/ars/13/03967.htm

When is bail not allowed?

Under both the Arizona Constitution and the Arizona Criminal Code a person who is in custody and facing a criminal trial may not be offered bail at all if “the proof is evident or the presumption great that the person is guilty of the offense charged” and the offense charged is one of the following:

• a capital offense (a crime that is potentially punishable by death)

• sexual assault

• sexual conduct with a minor who is under fifteen years of age

• molestation of a child who is under fifteen years of age

• a serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally

See Arizona Constitution, Article 2, Section 22(A): https://www.azleg.gov/viewDocument/?docName=http://www.azleg.gov/const/2/22.htm

See A.R.S. § 13-3961(A): https://www.azleg.gov/ars/13/03961.htm

Under both the Arizona Constitution and the Arizona Criminal Code a defendant may not be allowed to post bail if they have been charged with a felony offense and the state certifies by motion and “the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which the person is charged.”

See Arizona Constitution, Article 2, Section 22(A): https://www.azleg.gov/viewDocument/?docName=http://www.azleg.gov/const/2/22.htm

See A.R.S. § 13-3961(D): https://www.azleg.gov/ars/13/03961.htm

Sources and further reading

Arizona Constitution – Article 2, Section 22 (“Bailable Offenses”): https://www.azleg.gov/viewDocument/?docName=http://www.azleg.gov/const/2/22.htm

Arizona Criminal Code (Arizona Revised Statutes – Title 13): https://www.azleg.gov/arsDetail/?title=13

Arizona Rules of Criminal Procedure: https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=NCB1EB43070CB11DAA16E8D4AC7636430&transitionType=CategoryPageItem&contextData=(sc.Default)&bhcp=1

Arizona Rules of Civil Procedure – Rule 4.2 (“Initial Appearance”): https://govt.westlaw.com/azrules/Document/N9BE7E0E0A2EC11DEA301E57D8E5330AC?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

Arizona Rules of Criminal Procedure – Rule 7.2 (“Right to Release”): https://govt.westlaw.com/azrules/Document/NEB5B98E1E98D11E9BEFE89A994168F89?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)