Now THIS Is Emabarassing....

[BoSoxGal]

It's a factor to be considered by the Judge in the Montana bail statute, anyway - you'd have to check you own jurisdiction to see if it's a consideration there, but I'm guessing it likely is.

At hearings on bail, the Judge gets access to all kinds of information that must be withheld from a jury at trial to protect the defendant's rights. Judge gets to hear about the criminal history, any prior flight issues, and the State may proffer evidence of the alleged offense as detailed in investigative reports.

So for instance, if the Defendant is alleged to have run folks off the road and waved a gun at them during a road rage incident, the Judge knows these basic facts from the charging documents and if there is also a history, is expected to set bail commensurate with both factors.

The theory is that a higher bail setting due to the egregiousness of alleged offense provides greater incentive for the Defendant to remain law-abiding on release conditions.

[Andrew D]

This issue came before the US Supreme Court in U.S. v. Salerno, 481 U.S. 739, 107 S.Ct. 2095 (U.S. 1987). The Supreme Court upheld a provision of the Bail Reform Act which made "the safety of any other person and of the community" a factor in setting bail in federal cases.

By a 6-3 vote, the Court upheld the provision empowering the judge to consider "future dangerousness" when setting (or denying) bail. It specifically pointed out the procedural protections for the defendant:

Under the Bail Reform Act, the procedures by which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy of that determination. Detainees have a right to counsel at the detention hearing. They may testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses who appear at the hearing. The judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors, which include the nature and the circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender, and the danger to the community. The Government must prove its case by clear and convincing evidence. Finally, the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain. The Act's review provisions provide for immediate appellate review of the detention decision.

(481 U.S. at 751-752, 107 S.Ct. at 2104 (citations omitted).)

Whether bail conditions may be imposed without such procedural protections -- e.g., electronic monitoring and location restrictions imposed on people accused of child-pornography crimes -- remains up in the air.