Posting Bail: Get Out of Jail…Free?
The United States has a longstanding tradition of allowing individuals who have been arrested to be released on bail prior to their case being tried, effectively known as "pre-trial release". The Eighth Amendment to the United States Constitution explicitly forbids the imposition of excessive bail. While this prohibition is thought to hold the courts accountable, in practice, bail is still often set out of reach of defendants, with the unspoken intention of ensuring that defendants be forced to remain in confinement. Because of this, it is essential to have a basic understanding of what bail is and what your rights are in the process. This is one of the many reasons that having an experienced defense attorney on your side is of paramount importance.
The Minnesota Bail System
Minnesota employs a bail system that can be slightly confusing to those who are inexperienced in the process. First off, it is important to know that every individual who is arrested and in custody must be given an opportunity to be before a judge within 48 hours of arrest. Generally, it is during this initial hearing before a judge that bail will be determined.
Judges have extremely broad discretion in the implementation of bail. Once the judge takes up the issue, there are several possible outcomes. The most favorable is to be released on your own recognizance. This would mean that you will be allowed to leave without providing any money to the court and without any specific conditions being attached to your release. Unfortunately, this is rarely the case, as it is usually reserved for minor offenses. Instead, it is likely for most criminal offenses that a dual recommendation will be imposed. Minnesota is somewhat unique in that the Minnesota Supreme Court has determined that when a judge determines bail, citizens are entitled to two different options: the first is a purely monetary bail, while the second will also be monetary, but substantially less, and in exchange for the reduced money, various conditions will be imposed that the defendant must abide by. So for instance, a judge can set an unconditional bail at 30,000 dollars, or a conditional bail at 15,000 dollars, and a requirement of randomized drug testing. The defendant would then have the choice of which they would like to do, or, they can do nothing and remain in jail until their next hearing.
While either of the monetary amounts is often staggering, defendants have the ability to utilize bail-bond agencies which require the defendant to pay 10% of the prescribed bail amount in order to be released. So, a 30,000 dollar unconditional bail would require the defendant to pay 3,000 dollars to the bail-bondsman. Keep in mind, however, that when bail is paid directly to the court, that money is returned to the defendant when the case concludes, assuming they do not violate their bail order--which would result in forfeiture-- but money paid to a bail-bondsman is never returned to the defendant.
The conditions that may be imposed by the court cover a wide range of possibilities. But, there are two primary factors that are taken into consideration when assigning any bail: (1) the likelihood of the defendant returning to court; and (2) the danger to public safety if the defendant is released from custody. See Minn. R. Crim. P. 6.02 Subd. 1. Based on these two factors, judges have the authority to mandate almost any condition that they see fit to ensure that safety is upheld and the defendant returns. If the defendant chooses conditional bail, they must abide by such conditions or face additional criminal penalties, as well as a substantially higher future bail. Understandably, this scheme results in increased bail based on the severity of offenses.
What to Know Going into Your Bail Hearing
Your best chance of getting released on your own recognizance is to demonstrate to the Court that you have strong ties to the community, therefore you are not a flight risk. The Minnesota Rules of Criminal Procedure 6.02 Subd. 2 delineates 13 factors that judges may specifically consider in reaching a conclusion about your likelihood to return and the interest of public safety. Some of these include:
- Employment history;
- Family ties; and
- Prior history of appearing in court.
The very last thing you want to do is be found in violation of bail conditions that you are currently prescribed or miss a court appearance. If you do, it will almost certainly limit your ability to be released in future cases. Remember, Courts understand that life is unpredictable, if a legitimate unforeseen event arises that prevents you from attending a court appearance, call the Court ahead of time and let them know of your absence. Often times, they will be accommodating and it will prevent a warrant being issued for your arrest. This is another important reason to have a defense attorney on your side. With the ability to directly contact your attorney at any given moment, you are better suited to ensure that the Court understands the circumstances effecting your case.
Understand that bail and bond, while often interchanged when speaking about the process, are not the same thing. The Court sets your bail. Bail is conditions you must abide by, whether they be monetary or otherwise. Bond is the monetary payment made on your behalf by a bail bondsman. It attaches a legal duty to repay the bondsman for the money that they essentially loan you to get out of jail.
You have the constitutional right to be free from excessive bail. In Minnesota, this right extends to the conditions imposed. A judge may never impose conditions upon you that are based on something other your likelihood to appear in court and the safety of the public. Moreover, you are entitled to two bail options, a purely monetary bail, and a reduced monetary bail with conditions.
Finally, in the event that you are unable to post bail, you cannot be held indefinitely in jail. The United States Constitution awards every citizen the right to a speedy trial. If you are charged with a misdemeanor, you may request a speedy trial and the Court is bound to have the trial commenced within 60 days of you entering your not guilty plea. Moreover, if the trial does not commence within 10 days of such a plea, you must be released from jail, but with conditions prescribed by the Court. If you are charged with either a gross misdemeanor or a felony, the trial must still be commenced within 60 days absent extenuating circumstances.
Should I Retain a Lawyer?
Most certainly. The bail process can be both overwhelming and frightening. If the hearing does not proceed in your favor, you could be subjected to an intense ultimatum: pay thousands of dollars, or remain in custody. An experienced defense attorney will have the ability to strongly represent your interests and ensure you have the best chance of receiving a reduced bail. Additionally, defense attorneys are able to examine your case, identify the weakness of the prosecutor's argument, and could have the matter resolved before any further hearings are conducted.
If you have a summons for court, have additional questions regarding the bail process, or believe you have been subjected to an unconstitutional bail, call BK Law Group today.