How Does a Judge Decide My Loved One’s Bail Amount?

When someone is arrested for a crime, and a bond amount is not set at a police station, the person will appear in court within approximately 48 hours so that a judge may set bond. 48 hours is rather soon after an arrest, and for this reason many people are not able to secure a private attorney for their loved one; in these cases, a public defender appears on behalf of the defendant and represents them at what is called a bond hearing.


A bond hearing is a hearing for the purpose of setting a bond. At a bond hearing, the defendant appears before the bond judge for the first time. The prosecution, represented by an assistant state’s attorney, informs the judge of the charges the defendant is facing, and the factual basis for those charges. The factual basis is, in most cases, read directly from police reports.


For example, a prosecutor would tell the judge that a defendant was being charged with Aggravated Criminal Sexual Assault, and then read aloud a police report in which an officer describes interviewing an adult woman who told the officer that the defendant introduced himself to her at a gas station, lured her into the alley under the pretense of helping him with something, and then raped her. Aggravated Criminal Sexual Assault is the name of the criminal offense; the content’s of the report is the factual basis supporting the charge. The prosecution may ask that no bond be granted, or it may ask for a specific number in relation to a bond, or it may ask for a high bond in more general terms.


It is important to note that the factual basis presented at the bond hearing is presented only for the purposes of the bond hearing. It is preliminary information based on preliminary investigation. For example, if the prosecutor at the bond hearing states that the defendant was wearing a red baseball cap, but further investigation reveals surveillance footage that shows the defendant was wearing a blue baseball cap, that does not affect the bond hearing, the case, or the defendant’s constitutional rights, in most situations.


The prosecutor also reads aloud the criminal background of the defendant, including convictions for felonies and misdemeanors, as well as all arrests, even if they did not result in a conviction. Important factors for the prosecution to present to the court are the nature of the crime, any criminal background, any previous bond forfeitures (where a person does not show up for court), any bond forfeiture warrants or other warrants, and whether or not the defendant is a danger to the public.


The defense attorney then presents to the judge factors in mitigation. A bond hearing is not the appropriate time for the defense attorney to present theories of defense. That is, after the prosecution presents the factual basis and asks for a bond amount, the defense attorney is restrained from telling the judge that the defendant has an alibi, and that at the time that he was accused of being at the gas station, he was actually watching The Price is Right with his grandmother. Theories of defense are not to be presented at bond hearings.


Rather, the defense attorney is to focus on 725 ILCS 5/110-5(a), which focuses on mitigating factors that can be considered for the purpose of setting a bond. At a bond hearing, the defense attorney should first do a detailed mitigation intake with either the defendant or a friend or family member of the defendant who knows information about the defendant’s life.


The judge is primarily focused on information that tells him whether or not the defendant is a flight risk, what ties to the community the defendant has, and what his or her criminal background is. A defense attorney should be able to discuss all of this and more, including whether or not the defendant is a citizen of the United States, how old the defendant is, if he is married or single, if he has children and if so their general ages, if he works, and if so where and how long he has held that job, his general employment history for the purposes of showing consistent and steady work, his highest level of education, which and how many of his family members live in the general area of the jurisdiction for the purpose of showing a support system that will assure the defendant’s presence in court, any health concerns the defendant may have, any medication the defendant is on, any history of drug abuse or mental health concerns, and more.


It is important that a criminal defendant have a criminal defense attorney that is willing to do a detailed intake with the defendant in order to gather all of this information, and present it properly to the judge.


The judge will then know all about the charges and the nature of the offense from the prosecution, and all about the defendant’s life and history from the defense attorney, and thus be in a position to make an informed decision regarding the bond.


Illinois is a ten percent state, so that means that when the judge sets a D-bond, or a deposit bond, the person needs to have 10% of that amount posted in order to be released from custody. If the judge orders an I-bond, the person needs to only sign a piece of paper promising to appear in court on all court dates. Under rare circumstances, a judge will order a C-bond, or a cash bond, which means that 100% of the stated bond amount needs to be posted.


The following is an example of different bonds and how much must be posted:


$15,000 I-Bond = requires $0 to be posted

$15,000 D-Bond = requires $1,500 to be posted

$15,000 C-bond = requires $15,000 to be posted.


Illinois also allows for property to be posted instead of currency, but the value of the property must be twice the amount of the bond set. That is, in order to post property on a $15,000 D-bond, the property would need to be worth $3,000, which is 2×1500. In order to post property on a $15,000 C-bond, however, the property would need to be worth $30,000.


This post applies to Illinois state cases, not federal cases. Federal bond hearings, known as detention hearings, are quite different from state bond hearings, and will be explained further in an upcoming post.


Illinois state bond hearings and bond considerations are complex and nuanced, and can affect the criminal case in many different ways. It is important to hire an experienced criminal defense attorney to help you and your loved one navigate these concerns.

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10.0Raymond G. Wigell
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