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 Nebraska, bail is a legal mechanism that allows an accused individual to be released from jail while awaiting trial, upon providing a certain amount of cash or bond to the court as a guarantee of their return for court proceedings. The right to bail is rooted in the presumption of innocence and the importance of allowing the accused to prepare a defense. Nebraska adheres to the Eighth Amendment of the U.S. Constitution, which prohibits excessive bail. During a bail hearing in Nebraska, a judge will assess whether the accused can be safely released and whether they are likely to appear for trial. Factors such as the nature of the crime, the accused's criminal history, ties to the community, and the potential risk they pose to others or themselves are considered. The judge has the discretion to set the bail amount and any additional conditions for release. The state's statutes and rules of criminal procedure provide the framework for how bail is set and the conditions under which it may be denied, ensuring a balance between the accused's rights and the interests of public safety and court appearance.