— One of the purposes of setting bail is to ensure public safety.  If the defendant is charged with being a serial rapist or serial killer, chances are—whatever color they are—a judge is not going to set low bail (or no bail).  If the accused gets out, there’s a chance they’ll repeat their crimes and rape or kill more people.  Also, if a gun or other violence is alleged to have been part of the crime, the accused may have high bail set.  None of us like criminals with guns out on the streets.

— The second purpose of setting bail is to make sure the accused returns to court.  If there is a history of warrants for the accused’s arrest because he failed to show up for previous court appearances anywhere in the criminal justice system . . . it’s not a tough choice for a judge.  If the accused doesn’t have close or long-term ties to the community, it may indicated he would flee if released on lower bail.  

— In Minnesota, the law says the judge must assume the alleged facts in the case are true—for the purpose of determining bail.  There is no presumed innocent until proven guilty standard when setting bail.

— What impact does all of the above have on people of color?  If you consider that a certain amount of racism is built into the system of who is arrested and charged with crimes—people of color have a much higher chance of getting involved in the criminal justice system.  Then, with the presumption that the alleged crime is true, people of color will be judged more harshly than others—simply because they end up in the criminal justice system more often.

— Many people of color are poor.  They don’t have long-term ownership of homes or even renting.  They don’t have a long history of a job.  They don’t have a bank account, credit cards, home loans, and all the other stuff that keeps most of us anchored to our neighborhoods.  (Even if we don’t want to be!)

— The upshot of all these factors means that people of color usually have higher bail set when they get into the criminal justice system.

Do you have an experience like this?  (You don’t have to tell all the details!!)

The post Criminal Justice, Bail, and People of Color appeared first on Colin T. Nelson.

The setting of bail occurs when an accused person first appears in court to answer for alleged crimes.  That’s done because of constitutional requirements.  A judge has several choices at this point in a criminal case:

1.  The judge could release the accused without any bail.

2.  The judge could release the accused on a conditional release.  Various conditions would be established.  Such as, he couldn’t leave the jurisdiction, he must remain at his main address, he must call into or meet with a court services person, and he may have to prove sobriety by giving regular UAs, for instance.  If the accused violates any of these condition, he goes back to jail.

3.  The judge can set some amount of monetary bail.

The purpose for bail is twofold: to protect the public safety and to assure that the defendant will return for all court appearances and not flee.  At the same time, there are constitutional restrictions on the setting of bail.  For instance, in Minnesota the constitution mandates that no excessive bail shall be ordered.  How does a judge balance between these three competing goals?

In many of the larger counties in the country, clerks prepare a check-list for the judge before the defendant makes the first court appearance.  The checklist doesn’t tell the judge what to do but it gives the judge some background about the accused to decide the appropriate amount of bail.  In Hennepin County, the largest in Minnesota, the form is a check list of various things such as: the accused’s prior record, if any.  How long has the person lived at one address?  Any family?  Job?  How long has the defendant been employed?  Was a weapon allegedly used in the commission of the crime?  Any drug/chemical problems on the part of the defendant.  Any prior escapes from custody?

Based on the accused’s answers, the checklist is scored.  A higher score will indicate to the judge to be more cautious, to possibly set higher bail.  Generally, a more serious crime warrants a higher bail on the theory that the defendant has more to lose (more prison time) so has a greater incentive to flee.

At the same time, the constitution prohibits excessive bail.

Since the checklist is most favorable to middle class people with a long history of jobs and homes, what about lower income, less educated, and minority people who may not have the stable history that will reflect in a lower score?    For a working, middle-class defendant, maybe a bail setting of $100,000 is appropriate to ensure they come back to court.  But for an unemployed, homeless man, even $1,000 bail may be impossible to make.  So, what’s excessive for one person may not be the same for another.

Can you think of a system that would be fair and, at the same time, protect the public safety and ensure the return of an accused?  Should two checklists be prepared depending on who is the accused?

The post How to Set Bail on Criminals appeared first on Colin T. Nelson.

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.

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