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Excessive Bail & Pennsylvania Bail Laws

pennsylvania bail laws

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” Eighth Amendment to the United States Constitution.

The New York Times, in a recent feature article on March 31, 2018, discussed the current state of the bail system within the United States. Although the Constitution holds that a criminal defendant shall not be held on excessive bail, the current practice does not always adhere to that. Many defendants on the margins of society find themselves having to choose between incarceration, or using their homes, vehicles or life savings as collateral in order to have their freedom while defending themselves against criminal charges.


When a defendant in a criminal matter cannot afford bail, many times they remain incarcerated until their charges are dealt with. This could mean a loss of job, loss of income, loss of home, and/or loss of financial stability. Some defendants reach out to private bail bonds agencies in an attempt to gain their freedom while defending themselves against their charges.

Pennsylvania Bail Laws

In Pennsylvania, there are a number of procedural points where the defendant can request a modification or change of bail. When a defendant is first charged and processed, they are brought in front of a Magisterial District Judge for their Preliminary Arraignment. At their Preliminary Arraignment, the defendant is presented with the list of charges against them, and the Affidavit of Probable Cause, which is a narrative of the alleged facts that led the Affiant in the case to file the charges against the defendant. The defendant’s bail is also set by the Magisterial District Judge. For many defendants, at this stage of the process they have not retained counsel, although they have the right to do so. For a defendant without legal representation at a Preliminary Arraignment, with the specter of criminal charges, and potential jail time, the process itself can be overwhelming. Once bail is set at the Preliminary Arraignment, if the defendant is unable to post bail, they are remanded to the custody of their local county prison to await their Preliminary Hearing, which must occur within ten days.

At the Preliminary Hearing, bail can again be addressed after the hearing has occurred and the Magisterial District Judge has determined what, if any, charges will be held over to the Court of Common Pleas. It is at this stage of the proceeding that a defendant’s attorney can make an argument for a reduction or modification of bail and bail conditions. If no modification occurs and the defendant is once again remanded to prison, the defendant’s next recourse is to have their attorney file a Motion for Bail Modification at the Court of Common Pleas (trial level). That motion gets scheduled by the County Court Administration Department and can be set weeks, or more, from when the motion is filed. Throughout this time the defendant remains incarcerated unless, or until, bail can be posted.

The judicial philosophy behind bail is to ensure a defendant’s appearance in court to respond to the charges against them. It is not meant to be a punishment in and of itself. However, many times for the poorest in society, that is exactly what happens. Defendants facing criminal charges who have means and can hire counsel early in the process, can find that that mere fact of retained counsel assists in a reasonable bail. The demonstration that a defendant has it taken upon themselves to retain counsel is one of the factors that a judge might consider in the likelihood of a defendant appearing at future court proceedings. Although this is a benefit to those who are able to hire counsel early in the process, it does nothing to help those who do not have the means to retain counsel.  Now, under both the Federal and the Pennsylvania Constitution, an accused criminal defendant is entitled to representation by counsel if they cannot afford one. However, this counsel is generally not appointed for the Preliminary Arraignment that occurs prior to the Preliminary Hearing, although there are exceptions to this.

So again, a defendant without means can find themselves sitting for up to ten days, or more, waiting for bail to be modified. Many jurisdictions are revisiting this fundamental Constitutional right and determining if there can be a better way to assure that a defendant will show up for court proceedings without a high monetary bail. While this fundamental Constitutional matter is being resolved within the courts, it behooves an individual accused of criminal offenses to obtain counsel at the earliest stages of the process. Facing criminal charges can be one of the most stressful matters in a person’s life. An experienced criminal defense attorney can explain the process, procedure, as well as defend their client, and guide them through the criminal justice system. Anytime someone is charged with criminal offenses, they should seek legal representation to ensure that their rights are being fought for, and that someone trained in the procedures, laws, and constitutional rights of a criminal defendant is representing them.

Still have questions about Pennsylvania bail laws? Contact OWM Law today.

— Written by Thomas P. McCabe, Esq.

DISCLAIMER: The contents of this blog are not legal advice, and are not to be used for that purpose.  If you are charged with a criminal offense, you should contact a lawyer immediately in order to ensure that your rights are protected.  Thomas P. McCabe, Esquire is a licensed Pennsylvania lawyer, and does not purport to comment on any other jurisdiction in the United States of America.

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