It’s important to understand how the bail process works both in state court and in federal court. They are very different. This will certainly apply in Minnesota, but many other states are the same way in terms of this bail talk. Just to be sure, you should check with your local laws in your state because there may be some differences in how bail works there.
Generally speaking, how bail works is this – If somebody has been arrested for a crime or they’re taken into custody because they’ve got a warrant out or something else, and they’re in jail, family members often want to help their loved one out and get them out of jail. In order for that to happen, bail has to be set first by a judge. Sometimes bail is set automatically with a certain charge where you don’t even have to get in court in front of a judge. So you might be arrested on an offense, and automatically, to the bail out on that offense, usually for offenses that aren’t super serious, bail might be 500, or 1,000, or $1,500 or around there. You can pay that money right on the spot pretty much, get out of jail and be bailed out, and have court hearings to attend later.
More frequently, though, bail is set by a judge. This can happen in one of a couple of ways. Someone can be arrested. Let’s say it’s on a Friday night. This is a kind of worst-case scenario. So Friday night you were arrested, and your family member again is like, “Get me out of here.” They don’t want to be in jail Friday night, Saturday, Sunday, Monday, sometimes even into Tuesday before they see a judge. We can see if we can get bail set for the person, and that can happen a couple of ways.
A defense attorney is able to talk to the weekend judge or the judge that’s on call for that day or through the jailers to that judge and ask to have bail set. Usually, in that situation, it’s maximum bail, at least if you want to get them out on the weekend. The reason is, is because the prosecutor isn’t present in order to argue about why bail should be higher or lower, or those sorts of things. So, judges as a safety precaution will say, “Fine. If I’m going to set bail on a weekend without the prosecutor really being involved in that situation, I’m going to set maximum bail, otherwise, it’s not fair to the prosecutor.” That’s still better than being in jail for several days for some people, especially if they’re facing losing a job. But, that is one way that this can work, is that a defense attorney can attempt to convince a judge to set bail.
We cannot, by any means, get a bail set in every type of situation. Sometimes judges don’t care who the lawyer is or what the scenario is. They’re not going to set bail for a certain person for a variety of factors, maybe a prior history of running and not appearing to court, or flight from jurisdiction, or very serious crimes, especially where those people victims involved, or a whole bunch of other factors. But, there are many cases where we are able to get a bail set for people and get them out before they have to wait for a court date two, three, four days down the road.
Another way is that if they’re arrested, they’ll be in front of a judge, if it’s not a weekend, often the next day or at least the day after that. Then we’re in front of a judge, and we can argue about whether or not bail should be set at all and ask for different things, like a conditional release, which means you don’t pay bail, and instead you just had to have rules that you have to follow. For example, if it’s an assault case, one of the rules would be no contact with the alleged victim. It might be no use of alcohol or drugs or things like that. Make all your future court appearances and stay in touch with your lawyer. Those would be some conditions that are called conditional release instead of bail.
Another one is own recognizance. That means that you will be released on your own without any rules. You just have to make sure you come to court again.
Then, of course, there’s bail. And bail can be in the form of regular bail and conditional bail. Conditional bail is usually a lesser amount. A lot of times people don’t have the money for the full amount, but they’re happy to follow these rules for lower bail amounts so they can get out of jail are not stuck there sitting there the whole time that their case is going on, which can take months or even sometimes more than a year.
Courts will set bail, and most people hire a bond agency to bond them out, and that means that … Again, let’s say this example, $50,000 bail. Not a lot of people have that kind of money laying around. You could hire a bond company. Usually, their fee is 10%. The bond company sends a bond over to the court, meaning the bond is on the hook for the whole 50,000 if the person bails out and then later doesn’t show up for court or breaks a bunch of rules or something. The bond company usually wants some assurances from a co-signer or some property co-signed over to them so they’ve got some security there. But basically, you pay 10% to a bond company, and then the bond agency will file the bond, and then your loved one can get released from jail on bond.
In federal court, they usually don’t involve any money bond whatsoever. Instead, you sign what’s called a signature bond. That means it’s a promise to come back and follow certain rules. And if you don’t, then you’re fined $25,000 or $50,000, but you don’t actually have to go find a bond company and pay money to get out in federal court. The catch is that in federal court the rules are also different in terms of whether you even qualify for release. More people are detained, which means held, in federal custody and cannot pay a bond, not even a max bond because the judge doesn’t allow it. You’re just held in detention under the law there, and you can’t bond out.
If you have more questions about the criminal process, feel free to reach out. I’m criminal defense attorney, Ryan Pacyga. You can find me at arrestedmn.com or call me at (612) 339-5844.