You are watching the evening news on TV, or more likely getting the news on a smartphone, and you see that someone charged with a serious crime has been released by the judge on bail. It may make you feel unsafe. It may make you angry. You wonder, “What is wrong with that judge to let that criminal out of jail?” You may have heard TV reporters and protesters ask the same question.

Bail for a criminal defendant is an issue that is often the center of public and media attention following a murder or other serious crime. Criticism of the courts may be magnified when a defendant has earlier been released on another matter, either by posting bail or been released without bail. The media often ask, “Why wasn’t that criminal held without bail?”

The answer is pretty simple, really. The United States Constitution and Minnesota Constitution both provide citizens with protections from heavy-handed government. One protection is that all citizens accused of a crime are entitled to “reasonable bail,” regardless of the seriousness of the crime. It does matter that the crime was caught on video or in front of many witnesses. No one can be held without bail.

Minnesota law provides that the judge must consider a number of factors: Seriousness of the offense; Weight of the evidence; Defendant’s ties to the community; Past criminal history; and Risk to public safety. An important consideration for the judge in setting bail is whether the defendant will likely attend all court appearances if bail is not required.  “Bail is not a tool of law enforcement…it is not a form of punishment…it is not a privilege of the wealthy or the well-behaved…bail is a right, an absolute constitutional right, upon which the free exercise of all other constitutional rights largely depends,” wrote Hennepin District Court Judge Jack Norby in a 1996 decision.

Lesser crimes, such as misdemeanors and traffic charges, including DWI, usually involve no requirement of bail for pretrial release. Defendants charged with gross misdemeanor DWI or felony DWI generally must post bail of $12,000 or more, or be placed on an electronic home monitor for alcohol use. Felony charges usually result in a brief bail study being conducted by court services staff which evaluates the defendant’s criminal history, prior “failures to appear,” and the seriousness of the crime. A recommendation is made to the presiding judge as to the amount of bail and other release conditions.

Depending on the crime charged, release conditions may include such restrictions as that the defendant have no use of alcohol or drugs, submit to random chemical testing, have no contact with the victim, have no unsupervised contact with children, or not leave the state without court approval. Violation of these conditions will result in arrest, detention in jail, and may result in a substantial increase in the dollar amount of bail. A failure to appear to a court hearing will result in an arrest warrant and forfeiture of bail.

Release on bail is obtained by posting the cash bail amount with the court administrator, or purchasing from a private bail bond company a bond costing generally ten percent of the bail amount (for example, $1,000 cost for a $10,000 bond), and then filing the bond with the court.

Another consideration in setting bail is the defendant’s potential threat to the public if released. Minnesota requires that a defendant be released if sufficient conditions are placed on the defendant to safeguard the public and to ensure attendance at court appearances.

Often controversy erupts when a defendant violates a condition of release and commits another crime. The question is asked: “Why didn’t the court arrest the defendant when he violated his conditions of release?” Courts are but one of our three branches of government, the others being the legislative and executive branches. The courts do not have their own police force. Law enforcement agencies (including the county attorney, sheriff’s department, and the police department) are responsible for enforcing the court’s orders and arresting persons who violate the law. Under our constitutional system, the court has no means to arrest those who violate its orders.  

So please view media reports regarding arrests and bail with a critical eye, keeping our constitutional protections foremost in your analysis. Consider also, how you would feel if you or your spouse or child were arrested for a serious crime, for which there is a presumption of innocence, and no bail was allowed and the court required jail detention for many months pending trial. Particularly during the COVID-19 emergency, jury trials have been suspended and are only now beginning to slowly take place. It has also been documented that jails and prisons have high rates of COVID-19 exposure. In the United States we have many constitutional protections regardless of the serious nature of the crime.

JUDGE STEVE HALSEY,  Wright County District Court, is chambered in Buffalo and is the host of “The District Court Show” on local cable TV public access channels throughout the Tenth Judicial District. Excerpts can be viewed at Go to Community and click “The District Court Show.”  

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