Bail: What Was Once Your Right and Protection from the Government Has Now Been Usurped By the Government

Bail is an interesting issue. Someone's arrested, the state drafts a complaint, the court finds there's probable cause to believe the person committed the crime alleged (and keep in mind, probable cause is a relatively low standard. Not the lowest possible, but definitely not that much of a hurdle to meet.), and then the issue is whether or not the court should order the person be held until the posting of bail or if it should release the person, either with or without conditions. 

The reason that bail is interesting is that so few people realize the purpose of bail. And therein lies the problem. When we don't understand why bail is a thing, we don't understand why it's important to everyone (not just "criminals") and how it should be used by the courts. 

So, let's discuss. 

Bail was meant to be a protection for the accused against the government. The purpose of bail was not to keep people in jail; it was to give them a way out. Keep in mind that the people who are arrested are still considered innocent of the allegations made against them. So, with that in mind, bail was meant to prevent the government from holding someone presumed to be innocent in jail until the date of the next hearing. Not all offenses in all states are bailable. Sometimes people can be remanded into custody until the case is resolved, depending on the state.

In Minnesota, the only non-bailable offenses are capital crimes, aka ones which the death penalty can be imposed. However, since Minnesota doesn't have the death penalty, that means that no one can be remanded in the state of Minnesota pre-trial. The Minnesota Constitution guarantees that all non-capital offenses must be bailable. 

The main reason that bail is put on someone is to give them an incentive to come back to court. While the thrust of the concept is to prevent the government from keeping someone legally innocent in jail for an extended period of time, there was also a recognition that, hey, maybe if we let them out of jail, they'll take off and never come back to court. So, bail was away of meeting those two concerns. We'll let you out, provided you put up something of value that you want back. 

If a person posts the full bail amount on his or her own (often referred to as "cash bail"), they will receive that money back once the case is completed--regardless of whether they are found guilty or not guilty. The money is only meant to be held by the court in order to convince you to come back to court so you won't be out all that money. If you don't come back, you forfeit your bail money and don't get it back.

Bail bondsmen allow people who can't afford the cash bail option to pay them a portion of the total amount (usually 10%) and then the bail bondsman puts up the full amount.  That's why they will track you down if you don't come back to court--because the court will forfeit the bail bondsman's money after a certain period of time if the bondsman can't find you and get you into court. 

So, the primary purpose of bail was originally to ensure that the person would come back to court and wouldn't flee.  Generally, the more likely it would be for a person to flee, the more the bail would increase. In the alternative, the court can set conditions of release, which allows a person to post either no bail or a lower amount of bail, so long as the person agrees to follow certain conditions. If the person had significant ties to the community/area, were relatively stable, etc. then the court would be more inclined to grant release on promise to reappear or release on certain conditions, without bail needing to be posted. 

Somewhere along the line, the "purpose" of bail changed and suddenly now it encompassed two factors: the risk of flight and public safety concerns. 

Now, here's the problem I have w/ the "public safety" part...that has evolved into a magic talisman to keep people in jail. Normally, the state will argue for a specific amount of bail that has no conditions attached to it ("outright bail" or "unconditional bail") and then an alternative, lower amount of bail that includes conditions ("conditional bail"). The state brings up the defendant's prior record (regardless of how old it may be) and makes statements about the allegations in the complaint ("...serious offense...," "...use of drugs/alcohol...," etc.) and then says that they are concerned about public safety and would ask the court to impose both outright and conditional bail, in order to address public safety. 

Now, here's the problem: how in the world does having someone pay a bail in any amount somehow mean they will become less of a risk to public safety?  When we're dealing with the flight risk aspect of it, it makes sense: we'll let you go if you give us this money; if you come back to court, we'll give you your money back. If you don't, we'll keep it.  The interest is self-serving for the defendant, presumably because they want to get the cash back. 

But, does having someone post bail suddenly erase the State's public safety concerns? Pay $50,000 and then the state no longer needs to worry that you're charged with a violent offense and have a history of violent offenses? Of course that's not the case; of course simply posting a bail isn't going to alleviate public safety concerns because it has no real connection to the bail being ordered. You don't suddenly become a less violent, less drug-addicted, less-whatever person because the court has your money. 

Sure, if you are a "public safety risk" after posting the bail, the court can forfeit the bail money. But, does that really have any impact? Most cases where the State trots out the public safety argument have defendants with lengthy criminal histories and similar offenses. If the deterrent of jail and/or prison isn't sufficient enough to have kept them from committing the past offenses, is it really realistic to think that the fact that a bail bondsman is going to be out money and the defendant will lose their few $100 will be a deterrent to being a public safety risk? What's the amount needed to alleviate the concerns? Is there a sliding scale of seriousness that you have to look at? No. It's ridiculous to think that.

I mean, okay, I get it. I understand the concern. Guy with several violent, weapons-related offenses is charged with a new, violent, weapons related offense. He's a familiar face in the court, his reputation for being involved in criminal activity is well-known, and he doesn't seem to care about the consequences. I understand that this guy poses a public safety risk--I'm not saying that he doesn't. He likely is one regardless of whether he's facing new charges or not, given his history. I get why it's concerning to have him out of jail. Especially if there is an alleged victim involved who is scared of retaliation for having reported something to the police. 

So, I understand why the concerns exist. But, using that concern as a reason to impose bail only does one thing: keeps the person in jail. 

Let's call a spade a spade: the State asks for bail and the courts grant bail based on "public safety" as a way to ensure the defendant won't be out of jail while the case is pending. It's not because either entity thinks that, well, if we make him or her post $10,000 conditional bail, that will alleviate any public safety concerns we have. No. It's to ensure that the defendant will not be released pending his hearing. 

But, since all offenses are constitutionally required in Minnesota to be bailable, the law doesn't allow for the court to remand someone into custody until the case is resolved. And so, the public safety consideration has become a way to remand people into custody without saying that's what's happening. 

A public defender client, my clients, are my clients because they are the poorest of the poor. Unemployed for many years, disabled, drug and/or alcohol addicted, mentally ill, socially maladjusted, etc., etc., etc.  They don't have financial resources available to them. So, when the State asks for a conditional bail amount of $10,000 or $50,000 or whatever, it's reasonable to assume the state knows my indigent client will never be able to post that amount. It's impossible. It's a remand request disguised as a bail request. And it's granted far too often. 

The laws and rules in Minnesota explicitly state that a defendant shall be released w/o bail unless there are flight risk concerns or public safety concerns. Shall means the court has to do that, unless there's enough to overcome that. So, this tool that was originally crafted to protect the people from the government, to prevent the people from being held by the state, to provide a way out of jail for people, has now become a thinly-veiled tool to remand defendants into custody, to keep them in jail until the state and court says otherwise. 

There just isn't any reason to believe that ordering someone to post bail will mean they are no longer a public safety concern. If the concern was they have a lengthy history of similar offenses, that doesn't change once they've posted bail. If they were drug addicted, that doesn't change once they have posted. Whereas the bail can address a flight risk concern, in that the court now has something of yours that you value and you need to stay in the area and come back to court to get that back, the public safety concern can't realistically be addressed by requiring bail. 

The state has taken something that was once our tool, our protection from the government, and turned it into a way to skirt the constitutional requirements of all offenses being bailable (in Minnesota, of course).  

Like I said, I understand the concerns. I am not blind to the defendant's record as I'm standing there in court next to him. I recognize his name, too--he's been my client plenty of times before and quite frankly, as his lawyer who he can divulge anything to w/o fear of consequences, I probably know even more reasons to consider him a public safety risk. But that's not what bail is for and posting bail will not change those concerns. 

If it looks like a duck and quacks like a duck, it's a duck. This public safety consideration is remand without the name. It has the exact same effect and does the exact same thing. And suddenly, we've found a way to hold people in jail--people who are still innocent--without obviously violating the state constitution. 

If public safety is a real concern, then amend the constitution to allow for remand. But don't pretend that a defendant posting bail somehow addresses any concerns about public safety.