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Understanding "Bail"

Posted by Nick Pouladian | Aug 23, 2022 | 0 Comments

Bail is money that must be given, or promised to be given, to the Court to ensure that a defendant returns to court for all of their future hearings and remains law abiding during the pendency of their case.

What this means is someone who has been charged with a crime—and is presumed innocent—may potentially have to sit in jail while their case is pending if the Court believes they are either a public safety risk, or a flight risk, unless they can afford to post bail.

Bail is addressed by both the U.S. Constitution and the Minnesota Constitution.

The 8th Amendment to the U.S. Constitution provides that “[e]xcessive bail shall not be required…” and Article I, Section 5 of the Minnesota Constitution contains the same language. Article I, Section 7 further provides that, “[a]ll persons before conviction shall be bailable by sufficient sureties…”

While bail is a constitutional right, and regularly imposed, under the Minnesota Rules of Criminal Procedure, the default is that a defendant must be released on their own recognizance (no bail, no conditions except from reappearing in court as required) unless the Court finds that the individual poses a public safety risk or is a flight risk. Minn. R. Crim. Pro. 6.02 Subd. 1.

In determining whether an individual is a risk to public safety or a flight risk, the Court considers several factors, including:

  • The nature and circumstances of the offense charged;
  • The weight of evidence;
  • Family ties;
  • Employment;
  • Financial resources;
  • Character and mental condition;
  • Length of residence in the community;
  • Criminal convictions;
  • Prior history of appearing in court;
  • Prior flight to avoid prosecution;
  • The [alleged] victim's safety;
  • Any other person's safety;
  • The community's safety;

In reviewing these factors, the Court may find that the person does pose some risk to public safety and/or failing to reappear for court. If so, the Court will impose bail or other “conditions of release.”

There are typically two types of “conditions of release” ordered.

The first is simply ordering monetary bail in some amount, also referred to as “unconditional release.” If a person posts this larger amount of money, they are typically not subject to any conditions other than to return to court for their hearings (hence being called “unconditional release”). For example, a defendant is charged with 2nd Degree Assault.  The Court may set bail at $30,000. What this means is that in order to get (or remain) out of custody during their case, a defendant would need to post that full amount of cash. However, because very few people have significant amounts of cash on hand, they also have the option to buy a bond from a bail bond agency, typically for a 10% premium of the full amount. So, in this situation, a defendant would pay a bonding agency $3,000 and the bonding agency would in turn promise the full $30,000 to the court. While the person gets released from jail, they do not get the $3,000 back.

The second is called “conditional release.” This is where the Court releases a person from custody and imposes either a reduced monetary requirement—or none at all—as long as the person agrees to be supervised by a probationary agency and follow certain conditions (hence why it is called “conditional release”). Following the same example as above, as an alternative to the $30,000 bail, the Court may set conditional release as an alternative, releasing the defendant without having to pay any money, but the defendant must agree to have no contact with the alleged victim, do not possess any knives, bats, or other weapons, have weekly phone calls with probation, refrain from the use of non-prescribed medication or alcohol, and remain law abiding. As long as a defendant abided by these conditions, they would remain out of custody while their case is pending.

Another option that the Court may impose, in addition to the above, is what's called a “cash alternative.” This is where the Court permits a defendant to put up the same amount (typically) as they would have needed to pay to buy a bond. So, if unconditional bail is set at $30,000, it would cost $3,000 to buy a bond. However, an attorney can request, and the Court may grant, a cash alternative of $3,000 for unconditional release—what this means is the defendant now has the ability to pay that same $3,000 for unconditional release, but unlike buying a bond, the defendant will get the $3,000 back at the end of their case (as long as they keep showing up to court). Being charged with a crime is expensive enough, so having the ability to get bail money back at the end of the case can certainly be helpful to many people.

While a judge will usually provide a defendant with the option of unconditional vs conditional bail, they are only ultimately required to allow unconditional bail. Because unconditional bail is usually a higher monetary amount, not everyone can afford to post it and get out of custody. For this reason (and many others!) it's important to work closely with a criminal defense attorney to address your case at every step of the way. If you are charged with a crime, you don't have to face it alone – contact Peterson Legal today for a free case consultation!

About the Author

Nick Pouladian

Attorney Nick Pouladian Nick Pouladian is an experienced, client-focused defense attorney who brings passion, knowledge, and commitment to each case. He zealously advocates for and protects those who may have made a mistake or been wrongly accused from the overwhelming punitive power of the gov...


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