Can Bail Be Lowered? How Bail Reduction Hearings Work

Yes, bail can be lowered in California. A defense attorney can ask the judge to reduce bail at a hearing, and the judge decides based on public safety, the seriousness of the charge, the person's record, and how likely they are to come back to court. Since 2021, California judges also have to consider whether the person can actually afford the amount.

Here is how bail reduction works, what the judge looks at, and how to prepare.

How bail is set in the first place

When someone is booked, bail is usually set from the county's bail schedule, which is a list of standard amounts for each charge. That number is a starting point. Once the person is in front of a judge, often at arraignment, the judge can keep the scheduled amount, raise it, lower it, or release the person without bail on their own recognizance.

So the amount you see on the jail's website the first night is not always the final number.

What the judge must consider

California Penal Code section 1275 lists what a judge weighs when setting, reducing, or denying bail. The statute says "the public safety shall be the primary consideration." The judge also considers:

• The seriousness of the offense charged, including any alleged harm or threats to a victim or witness, use of a weapon, and drug involvement
• The person's criminal record
• The probability that the person will show up for trial and hearings

A bail reduction request is really an argument about these factors. The defense is trying to show the judge that a lower amount, or other conditions, would still protect the public and still get the person back to court.

The Humphrey decision: ability to pay matters

In March 2021, the California Supreme Court decided In re Humphrey. The court held that judges must consider a person's ability to pay when setting money bail. Keeping someone in jail only because they cannot afford the bail amount conflicts with the California Constitution.

The court also said that "liberty is the norm" before trial. A judge can still hold someone without bail, but only after finding by clear and convincing evidence that no other conditions would protect public safety or make sure they come back to court. In practice, this means defense attorneys can, and often do, ask the judge to look at what the person can realistically pay, and whether conditions like electronic monitoring or check-ins would work instead of a high dollar amount.

Humphrey does not mean every person gets released or that bail is always lowered. It means the judge has to look at the full picture, including finances, before deciding.

When a bail reduction can be requested

At arraignment

The first court appearance is often the first real chance to ask for lower bail or release on own recognizance. Many defense attorneys make the request right there.

Automatic review if the person stays in custody

Under Penal Code section 1270.2, a person who is still in custody because they could not post bail is entitled to an automatic review of the bail amount by a judge within five days of the original bail order. The person can waive this review, but it is there as a built-in check.

A bail motion later in the case

Bail can also be revisited later. Penal Code section 1289 lets the court change bail for good cause after a defendant has been released on bail on a pending case. If the defendant is the one asking for a reduction, the law requires that the district attorney's office be given notice of the request. Defense attorneys also file bail motions for people still in custody when something new comes up, such as a job offer, a stable place to live, or new information about the case.

Some charges require a hearing in open court

For certain serious or violent felonies and some domestic violence and threat-related charges, Penal Code section 1270.1 requires a hearing in open court before the person can be released on bail above or below the schedule, or on their own recognizance. Both the prosecutor and the defense get two court days' written notice. If the judge sets bail above or below the schedule, the judge must state the reasons on the record. This means reductions on these charges take a bit more process and time.

The defense attorney's role

A bail reduction is a legal argument, and it is usually made by a criminal defense attorney or public defender. The attorney can:

• Present information about the person's job, family, and how long they have lived in the area
• Show past court appearances, if the person has always shown up before
• Explain the person's financial situation so the judge can consider ability to pay
• Propose conditions instead of a high amount, such as electronic monitoring, travel limits, or staying away from certain people or places
• Respond to what the prosecutor says about the facts of the case

Families cannot file a bail motion on their own, but they can help the attorney a lot by gathering information quickly.

How families can help prepare

If a defense attorney is going to ask for lower bail, these things can make a real difference:

• Proof of work: a letter from the employer, recent pay stubs, or a work schedule
• Proof of residence: a lease, utility bill, or mortgage statement showing a stable address
• Family ties: information about children, a spouse, or relatives who depend on the person
• Letters of support: short, honest letters from people who know the person, if the attorney wants them
• Financial information: what the person and family can realistically afford, so the attorney can raise ability to pay
• Court history: anything showing the person has made past court dates

Ask the attorney what they want before you collect anything. Every case is different, and they will know what helps.

Should you post bail now or wait for a reduction?

This is one of the hardest calls a family makes. Waiting for a hearing can mean days in custody, and there is no guarantee the judge lowers the amount. The judge could also keep it the same, or, in some cases, raise it.

Some families post bail right away so their loved one can get home, keep their job, and help with their own defense. Others wait for the hearing because the scheduled amount is far out of reach. There is no single right answer. Talk with the defense attorney about how likely a reduction is in this particular case, and talk with a bail agent about what posting bail at the current amount would cost.

For bail bonds in California, premiums are typically 10% of the bail amount, based on rates filed with the California Department of Insurance, and payment plans are available. Our guide on how much a bail bond costs in California explains this in more detail. If bail is reduced after you post, talk to your bail agent and the attorney about what that means for your bond.

What happens after the hearing

If the judge lowers bail, the new amount can be posted with cash or through a bail bond. If the judge releases the person on their own recognizance, they can be released without posting bail, though they still have to follow every condition and attend every court date. If the judge keeps bail the same, the attorney may be able to raise it again later if circumstances change.

If you are not sure where your loved one is being held, our guide on how to find someone in jail in Southern California can help. For the basics of release, see how bail works.

This article is general information, not legal advice. For questions about your case, talk to a criminal defense attorney.

Need help now?

Whether you are posting bail now or waiting on a hearing, we can explain your options. OnCall Bail Bonds' licensed agents answer 24/7, in English and Spanish, and you can sign paperwork from your phone. Call (951) 339-3801, contact us online, or start bail online.