Bail is an important piece of our criminal justice system, and one that goes back a long way. In fact, both the U.S. Constitution (written in 1787) and the Minnesota Constitution (written in 1857) discuss bail. It is designed primarily to make sure that people who are accused of committing a crime appear in court for their trials while also giving them a chance to get out of jail while their case makes its way through the system. Interestingly, the Minnesota Constitution goes even further than the U.S. Constitution. In Minnesota, everyone is guaranteed bail while their case is pending. No one may be held without bail prior to the conclusion of their case (note: this only applies to new charges. In some circumstances, such as probation violation proceedings, this rule does not apply).
In Minnesota, bail is supposed to balance the interests of justice, the rights of people accused of committing crimes, and public safety. Recently, new reforms have started to gain attention with the goal of modernizing the system. This post explores Minnesota’s bail system, its purpose, and some of the more recent changes we’ve seen.
The Purpose of Bail
Bail serves a couple of important purposes:
- Ensuring Reappearance: The biggest single goal of setting bail is ensuring that defendants appear in court for their scheduled hearings. It allows a person to be released from jail while still providing the court assurance that the person has an incentive to come back to court.
- Protecting Public Safety: Though it may sound strange, bail also serves to protect public safety. Although Minnesota guarantees that every person is entitled to have a bail amount set, it does not limit the amount that can be required in serious cases. This is why we often see unrealistically high amounts set in very serious cases. Courts take public safety very seriously, and an individual who the judge believes poses a public safety risk is likely to have theirs set higher. Conditional bail, discussed below, is also an important piece of ensuring public safety.
- Preserving the Presumption of Innocence: Setting bail gives the accused an opportunity to get out of jail while their case is pending. This helps to uphold the idea of “innocent until proven guilty” and reduces the likelihood of someone pleading guilty just to get out of jail.
Types of Bail in Minnesota
In Minnesota, there are two main types of bail: cash bail and bail bonds.
- Cash: This method of posting bail requires the defendant to pay the entire amount of bail in cash. This money is paid into the court and held by the court while the case is pending. If the person makes all their required court appearances, the money will be refunded when the case is over.
- Bond: In the scenario, the defendant works with a bail bondsman to post a bail bond on their behalf. Typically, the defendant will pay the bond company a certain percentage of the total bail amount – typically 10% – and the bond company will then provide the court with a bail bond worth the entire bail amount. This option can be attractive to individuals who cannot afford to post the entire cash bail amount themselves. However, in this scenario, the bond company keeps the percentage that they were paid as compensation. Even if the defendant appears for all their court hearings, they will not get this money back.
The Process of Setting Bail
In Minnesota, setting bail follows a specific series of steps.
- Arrest: The bail setting process generally starts when a person is arrested on suspicion of committing a crime. That person is transported by the arresting officer to jail, where they will be held to see a judge. This typically occurs within 48 hours, although that time can be impacted by weekends and holidays and may be longer under some circumstances.
- Bail Hearing: The arrested person’s first court appearance will be a bail hearing. Here, the judge will consider the nature of the alleged crime, any criminal history of the accused, whether the person has previously failed to appear for court hearings, the person’s flight risk, ties to the community, and any danger to public safety in determining a bail amount.
- Conditional or Alternative Bail: In Minnesota, it is common for judges to set two (or even more) bails in a given case. First, the judge will set a higher “unconditional” bail. If the person posts this amount, they are released solely on the requirement that they attend future court hearings. Alternatively, the judge may set a lower “conditional” bail. If the person selects this option, they may post the lower amount but are then subject to additional conditions. These often include no use of alcohol or drugs, no possession of weapons, no contact with certain individuals, or no leaving the state. For example, a common bail setting for certain DWI cases is “$12,000 unconditional bail, or release without bail on the condition that the person not use or possess alcohol and submit to random testing.” The idea here is that a person accused of DWI usually poses no public safety risk if they’re not drinking, so by releasing the person on the condition that they not drink public safety is ensured without requiring an unnecessarily high bail.
- Modifications: If a person feels that their bail should be reconsidered, they may ask the judge to do so. For instance, someone who was released on a condition of “no use of alcohol and random testing” and has successfully abstained for a long period of time might be able to convince the judge to remove the random testing requirement. Or, someone who has been unable to make bail might ask a judge to reconsider the bail because they’ve found a placement in a treatment program that they would like to attend.
Reforms in Minnesota
One of the significant downsides to bail is the fact that people with few financial resources are more likely to be unable to post bail and therefore remain in custody, while wealthier individuals can post even high bail amounts. This has led to a number of reforms.
- Risk Assessment Tools: Way back in 1994 the legislature passed a law requiring the use of formal bail evaluation forms. The process has evolved significantly since then, and today many defendants will be interviewed prior to the bail hearing. The goal of this interview is to collect information to assist the judge in making a fair bail determination. This information is collected in a bail evaluation form. Studies have been conducted to determine what factors are most likely to accurately predict whether someone will appear in court or not. These factors include criminal history, warrant history, problematic chemical use, unstable residency, and more.
- Alternatives: Minnesota Courts are also taking a broader view of effective alternatives to cash bail, such as GPS monitoring or frequent check-ins with an agent of the court. Someone who shows an ability to make regular meetings with an agent while their court case is pending is more likely to show up for court, allowing the court to set a lower bail amount for these individuals.
- Reduction of Cash Bail: One of the major inequities in the system is presented by the cash/bond dynamic. Someone with the ability to post the full cash bail amount gets their money back at the end of the case, while someone of limited financial means who is forced to go through a bond company loses their 10% payment. As a result, some courts will now consider setting cash bail at 10% of the full amount, which means that these lower income individuals can now post that 10% directly to the court rather than paying it to a bond company. This means that they will get their money back at the end of their case, reducing the disparate financial impact of the system.
- Defense Attorneys: Most jurisdictions will now staff bail hearings with public defenders or private defense attorneys to represent the accused at bail hearings. These attorneys will argue bail on behalf of the defendant, rather than leaving them to fend for themselves. This ensures that the judge is getting the best possible information and an accurate picture of the individual, hopefully resulting in a fairer bail setting.
Bail is an important part of the criminal court system, but it is certainly not without its flaws. While significant reforms have occurred, we’re not likely to see the system go away altogether anytime soon. Judges continue to do their best to balance the important considerations of public safety, the rights of the accused, and the ability of the court system to function smoothly by ensuring individuals appear for court. If you have questions about the topic, or need help representing someone at their bail hearing, contact me so that we can discuss how I can help.