Criminal Law

Determining a Flight Risk for Bail

Bail is meant to reasonably ensure a defendant's continued appearance in court. A flight risk is a defendant who's likely to leave the state or country to avoid prosecution. In the federal system, the Bail Reform Act of 1984 balances the presumption of innocence with the need to make sure of a defendant's presence at trial. State courts have discretion in deciding whether to grant bail. An essential part of a court's decision to grant bail is the likelihood that a defendant will flee or skip town. An equally important part of the equation is the dangerousness of a defendant.

How Risky is a Flight Risk?

In determining who's a flight risk, the court considers each case individually. There's no exact method for calculating a defendant's risk of flight. Instead, the courts weigh a defendant's reliability against factors that point to a likelihood to flee, including:

  • Nature and circumstances of the offense
  • Length of possible sentence
  • Strength of evidence
  • Family and community ties
  • Record of appearances at trial
  • Previous occurrences of fleeing
  • Financial resources
  • Defendant's character
  • Opportunity to flee

It's up to the government to prove that a defendant is a flight risk. A person with stronger ties to the community - a home, family and job - is viewed as less likely to flee than someone with weaker ties.

If a judge finds that the circumstances point to a defendant's reliability and an unlikelihood of flight, then the defendant can be released on recognizance or unsecured appearance bond. On the other hand, if the judge determines that the defendant may be a flight risk or danger to the community, then release will be with conditions. For example, conditions for a defendant considered a flight risk might include surrendering his passport, wearing an electronic tether or hiring private security guards.

If the judge determines that no bail conditions will reasonably guarantee a defendant's appearance and the safety of the community, the defendant will be denied bail and kept in jail before trial. For instance, a British nanny charged with murdering an infant was denied bail and considered a flight risk because she was a British citizen, had few local ties and there was strong evidence against her.

Questions for Your Attorney

  • Will travel for work factor in to the flight risk determination?
  • It always seems that rich defendants get bail with conditions simply because they can afford it. Does a low income defendant stand a chance of getting bail? What about a homeless defendant?
  • What happens if a defendant leaves the state without telling the court?

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