I WANT YOU TO REMEMBER IT'S "BAIL" BEFORE "JAIL" SO YOU BETTER NOT "FAIL." OSCAR MADISON

I WANT YOU TO REMEMBER IT'S "BAIL" BEFORE "JAIL" SO YOU BETTER NOT "FAIL." OSCAR MADISON

ORIGINS Originally, money bail was developed in the Anglo-Saxon period in England (410-1066) as a means of settling disputes peacefully. The accused was required to find someone to serve as their surety who agreed to pay the settled amount to the victim if the defendant fled. No money was actually required to be released; a defendant just had to show they would be able to pay the settlement if needed. But as June Carbone said in Seeing Through the Emperor s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, The Anglo-Saxon bail process was perhaps the last entirely rational application of bail. The evolution of money bail throughout history - Karen Allen 4/18/16

MINNESOTANS RIGHT TO BAIL IN CRIMINAL CASES Minnesota Constitution Article 10- Sec. 7. Due process; prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. No person shall be held to answer for a criminal offense without due process of law, and no person shall be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. The privilege of the writ of habeas corpus shall not be suspended unless the public safety requires it in case of rebellion or invasion.

MINNESOTA ORIGINS 629.44 RECOGNIZANCE BY OFFENDER; CASES NOT PUNISHABLE BY IMPRISONMENT IN MINNESOTA CORRECTIONAL FACILITY-STILLWATER. A person arrested with a warrant for an offense not punishable by imprisonment in the Minnesota Correctional Facility-Stillwater, may ask to enter into a recognizance. If the person asks, the peace officer making the arrest shall take the arrested person before a judge of the county in which the arrest is made, for a recognizance without trial or hearing. The judge may take from the arrested person a recognizance with sufficient sureties for that person's appearance before the court having jurisdiction of the offense in the county. After the recognizance is taken, the judge shall release the arrested person. The judge taking bail shall certify the release of the arrested person on bail upon the warrant and deliver it, with the recognizance, to the person making the arrest. The person making the arrest shall deliver it without unnecessary delay to the court administrator before which the accused was recognized to appear. On application of the complainant, the judge who issued the warrant or the county attorney shall summon any witnesses the judge or county attorney considers necessary.

SOME GENERAL PRINCIPLES 629.53 PROVIDING RELEASE ON BAIL; COMMITMENT. A person charged with a criminal offense may be released with or without bail in accordance with rule 6.02of the Rules of Criminal Procedure. Money bail is the property of the accused, whether deposited by that person or by a third person on the accused's behalf. When money bail is accepted by a judge, that judge shall order it to be deposited with the court administrator. The court administrator shall retain it until the final disposition of the case and the final order of the court disposing of the case. Upon release, the amount released must be paid to the accused personally or upon that person's written order. In case of conviction, the judge may order the money bail deposit to be applied to any fine or restitution imposed on the defendant by the court and, if the fine or restitution is less than the deposit, order the balance to be paid to the defendant. Money bail deposited with the court or any officer of it is exempt from garnishment or levy under attachment or execution.

CONT D 629.62 APPLICATION FOR BAIL; JUSTIFICATION. If a person charged with a criminal offense and in custody desires release on bail and if the district court is not in session in the county the person may apply to a judge of district court or a judge of the Court of Appeals. The person shall apply by affidavit showing the nature of the application, the names of the persons to be offered as bail, and a copy of the papers upon which the person is held in custody. The judge may order the person charged to appear at a hearing to determine bail. The court shall give notice of the application to the county attorney, if within the county. No matters may be inquired into except those matters which relate to the amount of bail and the sufficiency of the sureties. A surety shall prove either by affidavit or upon oral examination by the court that the surety's assets are sufficient to pay the bond penalty amount to the court if the person bound under the bond fails a condition of the bond.

CRIMINAL PROCEDURE Rule 6.02Release by Court or Prosecutor Subd. 1.Conditions of Release. A person charged with an offense must be released without bail when ordered by the prosecutor, court, or any person designated by the court to perform that function. On appearance before the court, a person must be released on personal recognizance or an unsecured appearance bond unless a court determines that release will endanger the public safety or will not reasonably assure the defendant's appearance. When this determination is made, the court must, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release that will reasonably assure the person's appearance as ordered, or, if no single condition gives that assurance, any combination of the following conditions: (a) Place the defendant under the supervision of a person who, or an organization that, agrees to supervise; (b) Place restrictions on travel, association, or residence during release; (c) Require an appearance bond, cash deposit, or other security; or (d) Impose other conditions necessary to assure appearance as ordered. If the court sets conditions of release, it must issue a written order containing them. A copy of the order must be provided to the defendant and to the law enforcement agency that has or had custody. The law enforcement agency must also be provided with the victim's name and location. The court must set money bail without other conditions on which the defendant may be released by posting cash or sureties. The defendant's release must by conditioned on appearance at all future court proceedings.

MAXIMUM BAIL 629.471 MAXIMUM BAIL ON MISDEMEANORS; GROSS MISDEMEANORS. Subdivision 1.Double fine. Except as provided in subdivision 2 or 3, the maximum cash bail that may be required for a person charged with a misdemeanor or gross misdemeanor offense is double the highest cash fine that may be imposed for that offense. Subd. 2.Quadruple fine.(a) For offenses under sections 169.09, 169A.20, 171.24, subdivision 5, and609.525, the maximum cash bail that may be required for a person charged with a misdemeanor or gross misdemeanor violation is quadruple the highest cash fine that may be imposed for the offense. (b) Unless the court imposes the conditions of release specified in section 169A.44, the court must impose maximum bail when releasing a person from detention who has been charged with violating section 169A.20 if the person has three or more prior impaired driving convictions within the previous ten years. As used in this subdivision, "prior impaired driving conviction" has the meaning given in section 169A.03. Subd. 3.Six times fine.for offenses under sections 609.224 and 609.377, the maximum cash bail that may be required for a person charged with a misdemeanor or gross misdemeanor violation is six times the highest cash fine that may be imposed for the offense. Subd. 3a.Ten times fine.for offenses under sections 518B.01, 609.2242, and 629.75, the maximum cash bail that may be required for a person charged with a misdemeanor or gross misdemeanor violation is ten times the highest cash fine that may be imposed for the offense. Subd. 4.Not applicable for felony DWI.This section does not apply to persons charged with a felony violation under section 169A.20.

BAIL- WHAT DOES THE DEFENDANT DO? In the majority of criminal cases where an amount of bail is being set by the court, most judges will set 2 types of bail- unconditional and conditional. A defendant then has the option to choose which type of bail to post. When a defendant posts bail, they must post the entire amount in cash or certified bank funds. If the defendant is unable to post cash bail, they have the option to post a bail bond. This bond is a promise by the surety that the defendant will appear for all court appearances through the completion of the case.

BOND PROCESS CONT. The defendant must then engage a bail bond agent to write the bond and file with the jail. This will then procure the defendant s release. Bail bonds in Minnesota guarantee the defendant s appearance ONLY- they do not assure a defendant will abide by conditions of release. If the bond posted is for the conditional bail amount and the defendant violates conditions of release, the court cannot revoke the bond (the court can increase the amount of bail after a hearing and/or order unconditional bail only)

MORE BOND concurrent bonds - on some occasions a judge will set bail in a file and pronounce the bail is concurrent with another file. This practice is contrary to the surety s contract with the defendant and is a free ride on the new file. If the defendant fails to appear on the second, concurrent file, the court does not have authority to revoke the bond because the bail bond agent never agreed for the bond to guarantee the defendant s appearance on the new file

BAIL BONDS Bail bonds are types of insurance and regulated in Minnesota by the Minnesota Department of Commerce. Bail Bond agents are required to hold an insurer producer s license and document that they are a duly appointed agent of the surety company. Minn. Stat. Sec. 60k.49 sets out the requirements to be an appointed agent of a surety to write bonds.

BOND PROCEDURES Procedures for applications, renewals and suspension of bail bond agents are regulated by the Minnesota State Court Administrator. Procedures for writing bail bonds are outlines in Minnesota Rule of General Practice 702 Once an individual s application is approved by SCAO they then have bond writing privileges throughout the state.

BOND FEES In 2016 the Minnesota Department of Commerce entered into a consent order with all 21 insurance companies that provide surety bonds and all 41 bail bond agencies that write the bonds in Minnesota. This agreement required agents to charge the filed rates for bail bonds and also put into lace oversight by the insurance companies into the practices of the individual agents writing bonds for their agencies. Rate is 10% of bail amount Attempt to control what was being reported as abuse and unethical practices.

CASH BAIL- MINN. STAT. 629.53 At the conclusion of the case any cash bail posted becomes the property of the defendant, no matter who posted the money. If the defendant is convicted, the court can withhold any fines and restitution from the cash bail. Refunds are processed through the court administrator in the county where the case was venued and issued to the defendant. If a defendant who has posted cash bail fails to appear the cash is forfeited.

BAIL BOND AT CONCLUSION OF CASE If the defendant appears throughout the proceeding, the bond is discharged at the conclusion of the case. If the defendant fails to appear at a scheduled hearing, having received notice, the court can order the bond forfeited. Bind companies WILL make every effort to locate the defendant if they fail to appear including using fugitive recovery agents

BOUNTY HUNTING Minnesota Statute Section 629.63 authorizes a bail bondsman and/or his agent to arrest a defendant- If a surety believes that a defendant for whom the surety is acting as bonding agent (1) is about to flee, (2) will not appear as required by the defendant's recognizance, or (3) will otherwise not perform the conditions of the recognizance, the surety may arrest or have another person or the sheriff arrest the defendant. If a defendant has FTA- they have otherwise not performed a condition of the bond.

FAIL TO APPEAR 629.48 PROCEEDINGS ON FAILURE TO APPEAR ACCORDING TO BOND. If a person released under appearance bond as provided by rule 6.02 of the Rules of Criminal Procedure does not appear according to the conditions of the bond, the court shall record the default and certify the bond, with the record of the default, to the district court. The district court shall hear the default in accordance with the procedures provided in rule 6.03 of the Rules of Criminal Procedure for hearing a violation of a condition of release.

BAIL BOND FORFEITURE Minnesota Rule General Practice 702 and Minnesota Statute Section 629 control the procedures when a defendant defaults on an appearance bond. Court can order bond forfeited in full, or in part. Also issue arrest warrant for the defendant.

FORFEITURE OF BOND If the bond is ordered forfeited, bond company can petition the court to reinstate and discharge the bond. Must file petition within 90 days of the order to forfeit to prevent the mandatory 10% penalty. Rule 702 states no petition can be heard if not filed within 180 days of the order to forfiet

FORFEITURE CONT. District court is required to apply the 4 factor test from In Re Shetsky, 60 N.W.2d 40 (Minn. 1953) when deciding whether to reinstate and discharge a previously forfeited bail bond: (1) the purpose of bail, the civil nature of the proceedings, and the cause, purpose, and length of the defendant s absence; (2) the good faith of the surety as measured by the fault or willfulness of the defendant; (3) the good-faith efforts of the surety if any to apprehend and produce the defendant; and (4) any prejudice to the state in its administration of justice.

FORFEITURE If the court ultimately orders the bond forfeited, the bond company must pay the money to the state court administrator If the bond company fails to timely pay a forfeited bond their bonding privilege will be suspended throughout the state It is standard practice to require a defendant to have a co-signer on a bail bond Depending on the amount of the bond often times collateral will be required- real property, vehicle, etc.