Posted on March 28, 2025 in Criminal Defense

Right To Bail Law – How Is Bail Determined

The right to bail is a popular topic at the moment. There have been many discussions around bail reform and how bail is determined. If you were arrested in Arizona, you are probably wondering whether or not you will get bail and how the court will make that decision.

What Is Bail?

Bail is a term that refers to the process where a person pays money to get out of jail pending their trial. Sometimes, it is called a bond. The idea is that the person can get the money back if they appear in court and meet all their pretrial release conditions.

Proponents of cash bail believe that it encourages people to show up and follow the rules. On the other hand, critics argue that it unfairly penalizes people who do not have access to the money to pay their bail.

Types of Bail in Arizona

There are three commonly used types of bail in Arizona:

• Cash bonds
• Third-party release
• Unsecured bonds

A cash bond means that a person pays money to get out of jail. This can be paid directly to the court or a bail bondsman. Third-party release means that instead of a cash payment, a third party takes responsibility for the defendant appearing in court. This could be a parent, caregiver, or spouse for example.

An unsecured bond means that the person does not need to pay any money to get out of jail. Instead, they need to follow certain rules and promise to appear in court later. This is common in minor cases and if the person has no prior criminal history.

Who Has a Right To Bail in Arizona?

Most people have a right to bail under the Arizona constitution. However, there are a few exceptions, including people charged with:

• Capital offenses
• Sexual conduct with or molestation of a minor under 15 when the evidence is strong
• A felony while on bail for a felony
• A serious felony committed by an undocumented immigrant

It also includes people who pose a significant threat to the community where there are no other conditions that will mitigate the threat.

How Does a Judge Determine Bail?

Under Arizona law, a judge must consider several factors when deciding whether or not to set bail and the amount of the bail. These factors include:

• The victim’s opinion on bail
• The nature and circumstances of the offense
• Prior arrests or criminal history 
• If the defendant poses a danger to the community
• Risk of lethality in domestic violence cases
• Weight of the evidence
• Ties to the community
• Past and current substance abuse
• Past failures to appear in court
• Immigration status

Ultimately, the judge makes a decision based on the totality of the circumstances. If the judge determines that the defendant does not pose a threat to the community, is unlikely to commit further crimes while on bail, and will show up to court, then the judge must set bail.

The amount is usually higher for people accused of serious crimes and who are considered riskier than for people who are facing more minor charges.

What Happens If You Can’t Afford Bail?

If you cannot afford bail, you must remain in jail until your trial date. Unfortunately, this is the situation for many people. Even low bail amounts can be extremely burdensome for people who do not have extra money. Some may need to ask family and friends or even list property as collateral.

Bail bondsmen tend to lessen the burden of the cost of bail. Most will take 10% of the cost of bail upfront, and then they will pay the rest of the money to the court. You will not recover the 10%, but you also don’t need to pay the remaining 90%. This process can help people who are otherwise unable to afford the bond get out of jail.

Contact the Criminal Defense Lawyers at Orent Law Offices In Phoenix To Get Legal Assistance Today

For more information, contact the criminal defense attorney Craig Orent.
Give us a call at (480) 656-7301 or visit our law office at 11811 N Tatum Blvd UNIT 3031, Phoenix, AZ 85028.
We offer a free case evaluation, so get the help you deserve today.