The Founding Fathers incorporated many common law principles, traditions and concepts into the legal structure of the new nation. So it was no real surprise that bail - which had been a common law staple for nearly a thousand years - wound up being included in the Bill of Rights where the 8th Amendment states unequivocally that “Excessive bail shall not be required…” Today, there is a robust debate underway over just what constitutes “excessive bail”. With more than a few people wondering if the wording of the 8th amendment leaves room for bail amounts to be negotiated.

Can You Negotiate With the Bondsman?

If the constitution prohibits the use of excessive bail as a means to deny someone their freedom then certainly bail amounts should be open to negotiation. Because what’s reasonable for one person may well be excessive for someone else. Right?

Well, as with many things having to do with the justice system, bail bonding isn’t all that black and white. It might be possible to petition for a reduction in bail, but it’s not the bail agent who decides. It’s the court. And they look at a number of factors when setting bail amounts, including:

• The nature of the charges - A person charged with first degree murder stands little if any chance of having their bail reduced. Same if someone is charged with plotting or carrying out a terrorist attack. If however, a person is arrested for driving under the influence or for possession of a small amount of marijuana or for shoplifting and they don’t have any prior convictions (see the next item on this list), they stand a decent chance of having their bail reduced if they can demonstrate financial hardship.
• The defendant’s criminal history (if any) - The court will certainly take into account the defendant’s criminal history. If they have a rap sheet a yard long there is very little chance the court will grant a reduction in bail. On the other hand if this is the person’s first arrest and the charge is not too serious they may be able to have their bail reduced.
• The defendant’s financial situation - This is where the words “reasonable” and “excessive” really come into play. If the defendant is not accused of a violent crime, does not have a long criminal record and can prove legitimate financial hardship they may have their bail reduced. However, if they have no money because of a drug or gambling addiction the court may decide their financial hardship is self-imposed and refuse to reduce bail.
• The likelihood they will flee - If a person has a history of skipping out on bail bonds they stand zero chance of getting their bail reduced. Likewise, if they committed a crime while passing through Jefferson County, Arapahoe County or Denver County they also stand little chance of seeing a reduction in their bail amount. If, however, the person has a clean record, has children in local schools and has held the same job in town for years they may be given some bail relief.

Once the court has weighed all these factors and any others it feels may be relevant the judge will decide whether or not to reduce bail. If the person is not considered a danger to the community, has ties in the area, has a clean record and can demonstrate that the requested bail would be burdensome a reduction may be granted.

The “Bail in Unfair” Myth

There are a lot of people who claim that bail bonds should be eliminated. To bolster their argument they point to the number of people of limited financial means in jail awaiting trial who are only there because they couldn’t afford bail. What these arguments almost never mention however, is that many of these people are repeat offenders and/or those who have jumped bail in the past. Which means the court is finished being lenient with them. Whereas they may have convinced the judge to reduce their bail the first time around, their plea will fall on deaf ears the 2nd, 3rd and 4th time.

Can the Court Increase Bail?

One thing a lot of people are unaware of is that the court can, if it decides it’s appropriate, actually increase the amount of bail. And in some cases the judge will deny bail altogether. For instance, Gary Ridgway, the infamous “Green River Killer” was denied bail after being arrested because he was deemed both a high flight risk and a clear danger to the community. While that’s an extreme example the fact is that it is not uncommon for the court to increase or deny bail in some circumstances.

The Bottom Line

Those who see some wiggle room in the wording of the 8th Amendment are correct. It has long been established that judges have the right to set, increase, decrease or deny bail as they see fit. Therefore, if you have been arrested and feel that bail has been set too high, your attorney can petition the court to reduce or even eliminate bail and allow you to be released on your own recognizance. The important things to keep in mind are A) the more convictions you have the less likely you are to obtain a reduction, B) the nature of the crime you are accused of will also play a part in the decision and C) you will need to demonstrate financial hardship.