Let’s talk about the bail system, which is remarkably complex and frequently misunderstood. Whether you advocate for “ending cash bail” or you demand to know on social media why judges keep “giving” people accused of crimes bail, you should understand how money bail works in Minnesota.
Under the Minnesota Constitution, people have a right to bail before their cases are resolved. This is not true in federal court and in many states where a judge can detain the accused without setting bail.
This means that a judge in Minnesota cannot hold (detain) an accused person without setting some amount of bail. The seriousness of the crime does not matter; every person charged with any crime in Minnesota has a constitutional right to bail.
Why is bail enshrined in our constitution? People accused of crimes are presumed to be innocent, and taking away their freedom before trial should not be done lightly. Judges are not allowed to set bail to punish the accused. Judges are only allowed to set bail if they believe the accused will not return to court, or that he or she will be a danger to the community. Consequences, such as jail or prison, can be imposed only after a person is convicted.
A wealthy person can bail out on a murder charge, while a poor person can sit in jail on a property charge because he or she cannot afford to post bail.
The MN rules direct judges to presume that the accused should be released without the requirement of bail. If a judge finds that the person is unlikely to return to court or that they are a danger to the community, they may impose conditions of release.
These conditions, such as no use of alcohol or drugs, an order to stay away from a specific person or address, or requiring the accused to report to a person from probation called a conditional release officer, must be specifically tailored to the allegations in the complaint (charging document).
Hundreds of people show up for their court appearances, do not commit a new crime, and ultimately resolve their cases. No one hears about them because they follow conditions of release, and there is nothing of interest to the public about that. Only when someone who is out is accused of a new crime do people start demanding to know why that person wasn’t in jail pending trial.
Money bail favors the wealthy, as well as serving to extract large amounts of non-refundable premiums from poor people. Let’s say a judge sets bail at $10,000. A person with wealth can give the court the entire $10,000 and leave the jail. The court will return the entire $10,000 once the case is resolved. Essentially, a person with wealth can buy her way out of jail, no matter the accusation.
A person who cannot afford to give the court the entire $10,000 can use a for-profit bail bond company. The bail bond company will charge a “premium,” usually about 10 percent, or $1,000 cash in this example.
If the person can come up with the cash and put up collateral for the remaining amount, the bail bond company will post the bail with the court. Once this person’s case is resolved, the judge will discharge the bond. The bond company, however, keeps the 10 percent cash premium. In other words, a person without the wealth to post the entire $10,000 to the court permanently loses $1,000 cash by using a bail bond company.
Research also indicates that a person who stays in jail is more likely to commit a future crime because their lives are destabilized. People in jail often feel pressure to plead guilty if a negotiation allows them to get out. This means that some innocent people do plead guilty, but it also indicates that two guilty people could get different resolutions because the person (with wealth) who was released could set his case for trial, where better offers are often made.
This is why many argue for the end of cash bail. It is a wealth-based system that has nothing to do with risk. A wealthy person can bail out on a murder charge, while a poor person can sit in jail on a property charge because he or she cannot afford to post bail.
Based on my experience, I think it’s a bad idea to amend the Minnesota Constitution to remove the right to bail and to allow judges to detain the accused pretrial. Most judges are extremely risk-averse because they fear being targeted by the media.
Judges have told me that they worry about letting people out of jail because if something goes wrong someone might run against them in their next election. I fear that they, like their federal court counterparts, will simply detain more people than they do right now.
Mary Moriarty was a public defender for 30 years, most recently for Hennepin County.