Bail in Pennsylvania - Fundamental Principles

Posted by Joseph D. Lento | Jul 16, 2017 | 0 Comments

When a person is arrested in Pennsylvania, whether in Philadelphia, or any of Pennsylvania's 67 counties, the setting of, and posting of bail will often be one of the first experiences that a defendant and his or her family has to endure after the arrest itself.  Understanding what bail is in a fundamental sense will help a person charged with a crime and his or her family in better understanding the bail process in Pennsylvania.

What is bail?

Bail is the security required and given for the release of a person in the custody of the law, conditioned upon a written undertaking that the person will appear when required and do all other things stipulated therein. This principle is established by Pennsylvania Rule of Criminal Procedure 103.  

What is the purpose of bail?

The fundamental purpose of bail in a criminal case is to secure the presence of the accused at trial. 

What is "collateral?"

In summary cases in Pennsylvania, bail is termed "collateral," which is defined as the case or cash equivalent deposited in summary case. 

What are a defendant's responsibilities after being released on bail in Pennsylvania?

After release on bail following an arrest in Pennsylvania, a defendant assumes the responsibility of being available for any required court appearance upon receipt of reasonable notice.

Can bail be "excessive?"

The Eighth Amendment of the United States Constitution provides, in part, "Excessive bail shall not be required."  This is a fundamental principle, basic to American jurisprudence and applied to the states, including Pennsylvania, through the operation of the Fourteenth Amendment.

Although the Eighth Amendment prohibits states, including Pennsylvania, from imposing "excessive" bail, the Third Circuit Court of Appeals has held that the Eighth Amendment does not prohibit the states from denying bail altogether in serious cases.

Can a defendant get bail before trial?

The right to bail before trial is guaranteed by Article I,  § 14 of the Pennsylvania Constitution, which provides:

"All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption is great...."

 In addition, the Pennsylvania Judicial Code provides that excessive bail will not be require.  The right to release on bail before trial is conditioned upon the accused giving adequate assurance that he or she will appear for trial however. 

Can pre-trial bail be denied?

If the court reasonably concludes that a defendant may not appear for trial altogether no matter high high the bail is set, it may deny bail altogether.  For example, if the accused has "jumped bail" on a past offense, or "failed to appear" (FTA) per the terminology used in the Philadelphia criminal court system, bail may properly be denied.  Two Pennsylvania cases addressed such a consideration specifically: The accused fled the Commonwealth of Pennsylvania and was returned to Pennsylvania on a fugitive warrant, bail may be (and was) properly denied.

Bail in Capital Cases

Bail may be denied when the defendant is charged with a capital offense (see below), but only when the court finds "the proof is evident or the presumption is great" that a capital offense has been committed. 

The Pennsylvania Supreme Court has found that the constitutional phrase "capital offense" is a definition of a penalty, for example, the death penalty, rather than a definition of the crime of murder in the first degree.

For the purposes of bail, only murder in the first degree constitutes a capital offense for which the death penalty may be imposed.

Can I get my bail lowered?

 If the right to bail, or as more often be the case, the appropriate amount of bail is contested, the burden of proof rests on the prosecution (known as the "Commonwealth" in Pennsylvania criminal court proceedings) to establish that the defendant will not appear for trial or otherwise is not entitled to bail.

What are the "rules" of bail in Pennsylvania?

Pennsylvania Rules of Criminal Procedure 520 et. seq. govern the general bail riles of the Commonwealth of Pennsylvania.  Other bail provisions are found in the Pennsylvania Judicial Code, § 5741 et seq., which relate to the professional bondsmen. The latter provides in part, "[n]o professional bondsman shall charge a premium or compensation for acting as surety on any undertaking in excess of 10% for the first $100, and 5% for each additional $100 of such undertaking.

Still other Pennsylvania bail provisions are located in the Pennsylvania Crimes Code.  These provisions specifically provide that any pretrial release in Pennsylvania, whether on bail or under any other form of recognizance, is conditioned upon the defendant's refraining from intimidating or retaliating against any witness or victims of the alleged offense.

What is being released on "one's own recognizance" in Pennsylvania?

An individual who has been accused but not yet convicted of a criminal offense in Pennsylvania may be allowed to go free prior to the trial without being required to post a bail bond. The accused individual provides the court with a formal written statement, which declares that his failure to appear will precipitate payment to the court of a specifically indicated sum of money. This is known as a release on "one's own recognizance, or personal recognizance.

What happens if bail is improperly set?

Even if bail is improperly set, there is no prophylactic rule that a new trial is required for the defendant.  A defendant in Pennsylvania who makes a claim of illegal bail must establish prejudice to the defense caused by excessive bail as a prerequisite to relief from a conviction.

Can bail be posted after hours?

The Pennsylvania Rules of Criminal Procedure require that the president judge of each judicial district insure the availability of at least one issuing authority at all times within the judicial district.  (Philadelphia County and all other Pennsylvania counties are known as "judicial districts."  Philadelphia County is known as the "First Judicial District of Pennsylvania" for example."

The magisterial district judge, or the bail commissioner in Philadelphia bail matters, assigned to be on duty after business hours must set bail as provided in the Pennsylvania Rules of Criminal Procedure which govern bail, and must accept deposits of bail in any bail case pending in any magisterial district within the judicial district (or in Philadelphia Municipal Court in Philadelphia bail matters). 

For example, bail can be posted 24 hours a day / 7 days a week at the Philadelphia Criminal Justice Center, known as the "CJC," located at 1301 Filbert Street, Philadelphia, PA 19107.  Bail in Philadelphia is also set at the Criminal Justice Center, and is set 24 hours a day / 7 days a week in approximate four hours shifts starting at 12 AM.

Philadelphia Bail Attorney | Lawyer for Pennsylvania Bail Hearing

If you or a loved one has been arrested and charged with a crime, make no mistake, the initial setting of bail can mean the difference between sitting in jail, sometimes unfortunately for months, or being able to go home to be with family, return to work, and to fight the charges from the best position possible - out of custody. 

Whether bail is being initially set or needs to be lowered in Pennsylvania, be it in  Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, or Northampton County, contact attorney Joseph D. Lento today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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