Bail is an amount of cash or bond a person accused of a criminal offense must deliver to the court to be released from jail following the person’s arrest for a crime—with the promise by the accused to return to court for trial. Because a person generally has a right to the presumption of innocence and to be free from punishment prior to conviction—and because freedom before conviction helps the accused prepare a defense to the charge of a criminal offense—there are limits on the government’s right to incarcerate an accused before trial.

The competing interests of an accused’s right to freedom before conviction and the state or federal government’s interest in assuring the accused will be present for trial—and for any punishment upon conviction (jail, prison, etc.)—are facilitated by the bail process. The accused’s right to release before trial is conditioned upon the accused giving adequate assurance that he will stand trial (be physically present) and submit to the sentence (punishment) if found guilty.

The modern practice of requiring a bail bond or the deposit of a sum of money (cash bail) that is subject to forfeiture serves as an additional assurance that the accused will appear for trial. But bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is excessive and violates the Eight Amendment to the United States Constitution—which provides that “excessive bail shall not be required.”

During the bail hearing the judge determines whether the accused should be allowed to post bail and be released from jail before and during the trial—based in part on whether the accused presents a threat to himself or others if released from custody, and whether the accused will likely appear for trial, or will be a flight risk and likely not appear for trial. And if the judge does grant the accused bail, the judge determines or sets the amount of the bail required and any other conditions of the bail.

In Virginia, bail is a legal mechanism that allows an accused individual to be released from jail while awaiting trial, in exchange for a monetary guarantee or bond that the person will appear in court when required. The right to bail is rooted in the presumption of innocence and the principle that individuals should not be punished before being convicted. Virginia law, in alignment with the Eighth Amendment of the U.S. Constitution, prohibits excessive bail, ensuring that the amount set is not higher than necessary to ensure the accused's appearance in court. During a bail hearing, a judge in Virginia will assess whether the accused poses a risk to public safety or is likely to flee (becoming a flight risk) when deciding on granting bail, the amount, and any conditions attached to it. The judge's decision balances the accused's right to freedom before conviction with the state's interest in securing the accused's presence at trial and for any subsequent punishment if convicted.