How can it be that when someone is accused of a crime, they always seem to be released from custody while they wait for their trial.

Instead of the judge holding them in custody, they get released into the community on bail.

What’s going on?

In Minnesota, as in other states, the state constitution in the Bill of Rights, Section 5  says: Excessive bail shall not be required.  Further, it’s been accepted in law that the purpose of bail is to protect the public and prevent flight.  So if it’s a right for every accused person to “get bail” to get out, how does it work?

There are two ways an accused can post bail.

1.  The defendant can give the amount of the bail to the court in cash.  This may be possible if the bail is set law, under $5,000.  But when the allegations are more serious, bail could be in the $100’s of thousands–difficult for almost anyone to come-up with.  If the defendant is wealthy and there’s strong evidence the defendant may run, like Tom Petters  in his fraud case in Minnesota, bail may be denied.

2.  The second method is to contact a bail bonding company.  These are companies that guarantee to the court the full amount of the bail–even if the defendant runs at which time the full amount of cash would be due to the court, payable by the company.  To offer this guarantee, the companies charge 10% of the amount of bail as a non-refundable fee to the accused.

Does the bonding company lose all of the money?

Usually not.  As part of the bonding contract, the company will demand security–often a co-signer with assets or an income.  If the accused boogies out of the state, the company can turn to the co-signer who will try to get the accused to come back and turn himself in.  If he does that, the bail can be re-set without forfeiting any of the money.  If the accused disappears for good, the company will demand reimbursement from the co-signer.  Sometimes, if the accused has an asset such as a house, the company will take ownership of the house and try to sell it to compensate themselves.

The bonding company can recover by actually hunting-down the accused person and bringing them back to the jurisdiction from which they fled.  They can talk them into returning or try to force them to do so.  Most bonding companies have a wide network of informants and “enforcers” to help them get the defendant back into court.

Once the case is over, the bail status is discontinued.  If the defendant has put their own cash with the court, it would be refunded.  If they’ve bought a bond, the 10% fee is non-refundable and remains with the bonding company.