Jail Release Options in Violent Crime Prosecutions

One of the shortest and most important Constitutional criminal rights provisions is the Eighth Amendment. This section forbids cruel and unusual punishment, a controversial provision which may include capital punishment. More importantly for purposes of this blog, the Eighth Amendment also guarantees reasonable bail in criminal cases.

“Reasonable” is a rather subjective term. That’s especially true in assault and other violent criminal cases, because there are a number of factors to consider. Sometimes, the defendant is a threat to specific individuals in the community. Other times, the defendant’s recklessness is a danger to the community at large.

Many times, prompt jail release aids in establishing a defense to the allegations – you can’t assist with your defense much while in jail.

Initial Jail Release

Since the early days of the Republic, the cash bail/bail bond system has been the primary jail release mechanism in Florida. But this system has been criticized lately. In many jurisdictions, there are more unsentenced inmates than sentenced inmates in county jails. In other words, many people simply cannot afford to get out of jail before entering a plea or going to trial.

So, limited pretrial release is often available. Unfortunately, many violent crimes do not qualify for OR (Own Recognizance) release. The good news is that, in all but the most serious violent crimes, cash bail or a bail bond is usually available.

The sheriff sets presumptive bail amounts, largely based on the severity of the offense and the defendant’s criminal record. Ironically, research indicates that people charged with serious crimes are more likely to stick around for trial, and people who have criminal records know how the system works. But that’s the subject of another blog.

If the defendant posts the entire amount in cash, the sheriff releases the defendant. Later, when the case is resolved, the defendant gets most of that money back.

Many times, even a few thousand dollars is cost-prohibitive. So, a bail bond may be an option. Most bonding companies charge about a 10 percent premium to post a surety bond. This premium is nonrefundable and bail bonds usually come with additional conditions, but the result is the same. The defendant is free before trial.

Generally, bail bond conditions include things like remaining within the county, keeping the bonding company apprised of contact information changes, checking in with a bond agent, and staying out of trouble with the law. Judges may impose additional conditions, such as staying away from alleged crime victims and imposing a curfew.

Bail Modification Matters

As mentioned, in many serious felonies, the sheriff does not set a presumptive amount. Or, the amount may be too high, even for a bail bond. In these situations, the judge usually reconsiders the bail issue, often during the arraignment.

At this hearing, an attorney advocates for the defendant. Additionally, the judge considers a number of other factors in addition to the severity of the offense and the defendant’s criminal record. Some of these factors are:

• Amount the Defendant Can Pay: This factor is relatively straightforward. The judge usually considers the defendant’s resources, such as cash available, borrowing ability, and salable property.
• Defendant’s Connections to the Community: People who have families and jobs in the area are less likely to flee than drifters who are just passing through or people with connections to another place.
• Amount of Evidence Against the Defendant: This factor is often important in violent crime cases. If the state’s primary evidence is the alleged victim’s testimony, that’s not very much evidence.

Frequently, the defense attorney and prosecutor agree on bail. For example, the prosecutor might agree to reduce the amount if the defendant accepts additional conditions, like electronic monitoring.

Rely on a Board Certified Criminal Trial Lawyer

Release from jail early on helps jumpstart a successful violent crime defense. For a free consultation with an experienced Tampa criminal lawyer, contact The Matassini Law Firm. Nicholas G. Matassini is Board Certified in Criminal Trial Law and is AV-Rated by Martindale-Hubbell. We routinely handle matters in Hillsborough County and nearby jurisdictions.