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How Judges Set Bail
November 30, 2012 posted by Steve Brownstein
by Judge Galler
You have probably seen news stories about someone being arrested for a horrible crime and then heard that the judge set bail allowing the person to be released from custody.
You then thought, “What is with those crazy judges? Why would there be any bail set? Shouldn’t this person just sit in jail until trial?”
Some states have laws that allow an accused person, in certain circumstances, to be held in jail until trial with no chance of bailing out. Other states, like Minnesota, require judges to set bail in every case.
The Minnesota Constitution mandates that “All persons shall before conviction be bailable by sufficient sureties, except for capital offenses...” Capital offenses are those where the death penalty could be imposed. As Minnesota abolished the death penalty in 1911 we no longer have capital offenses.
Accordingly, in 1958 our Supreme Court decided that bail must be set in every case. This followed decisions in other states, with similar constitutions, affirming that bail is required no matter how “diabolical or atrocious” the charge.
In response, you might think, “Judges should set bail so high that the accused could never post it.” However, that would be illegal and improper. Judges are sworn to uphold the constitutions and laws of the United States and the State of Minnesota. Both constitutions mandate that “excessive bail shall not be required.”
Judges are not to substitute their views of what the law should be for what the law actually is. To do so would violate the separation of powers and be an example of judicial activism.
A judge must follow the law regarding bail. Our law requires that bail must be set in an amount that is fair and reasonable given all of the facts of the case.
There are two primary factors that affect bail settings. First, whether the person is likely to voluntarily appear in court, and second, whether the person will likely constitute a danger to the public, or themselves, if released. Courts generally require higher bail settings for those with a history of missing court, those who seem likely to flee, and those, whom the court reasonably believes, if released, will be dangerous or commit other crimes.
In determining a fair and reasonable amount of bail judges consider numerous factors including the nature of the charge, the person’s criminal history, whether they have a job, own a home, have a family, or if they have completed schooling. Experience shows us that those who are well invested in a community are lesser risks to flee, endanger others, or commit more crimes.
In the end, all any judge can do is to use their best judgment, experience, and common sense. Even after considering all of the best information available, it is impossible to predict with any real certainty which defendants will later flee or turn out to be dangerous. This interplay between protecting society and respecting the right to bail makes these some of the hardest decisions that judges make.
