Individualized Bail Determination

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The notion underlying a risk-based administration of bail that each defendant poses his or her own risk, which can be assessed using professional standards and research. It presupposes that the fixing of bail in a blanket fashion not taking into consideration those individual risk characteristics is flawed and possibly illegal. The notion was first articulated by the United States Supreme Court in Stack v. Boyle, 342 U.S. 1, 5-6 (1951), when the Court wrote that “[t]o infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act,” and “[s]ince the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in the Federal Rules of Criminal Procedure are to be applied in each case to each defendant.” The particular standards referred to in Stack included the nature and circumstances of the offense, the weight of the evidence, the financial ability of the defendant, and his or her character. Most states have similar standards in their bail statutes, thus statutorily mandating an individualized bail setting.

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