The terms “bond” and “bail” are frequently used interchangeably in everyday speech and even in Michigan statute, but they are distinct. The legal definition of bond contemplates a contract promising to pay money or provide some other security, which contains a clause voiding the promise if a certain condition is met. Bail, by contrast, can either be a verb referring to the process of releasing someone from government custody or a noun that means a sum of money posted to obtain that release.
In general, criminal defendants are entitled to pretrial release except in a few limited cases.[*] They are usually arraigned before a judge, who decides whether to impose conditions on that release, and then either freed from government custody or detained until they can meet the conditions.
The Michigan Constitution allows bail to be denied to certain defendants when the “proof is evident or the presumption great” that they are guilty. This may include defendants charged with murder or treason, felons convicted of two different violent felonies within the last 15 years and anyone charged with committing a crime while they were out on bail, probation or parole. Additionally, judges may deny bail to defendants charged with first-degree criminal sexual conduct, armed robbery or kidnapping with intent to extort money or valuables.[†]
All other defendants must be offered bail, but, under the constitution and state law, bail cannot be excessive.[‡] Additionally, judges may attach certain conditions to the defendant’s release on bail, such as travel restrictions, curfews or drug tests.
The Michigan Court Rules contemplate three possibilities concerning the custody of a defendant while he awaits trial: 1) denial of bail, via court order, under which the defendant will be held in custody until and throughout his trial; 2) release on a “personal recognizance” or “unsecured appearance” bond; or 3) conditional release.[§] This conditional release may include the requirement that the defendant provide collateral before going free — usually via a cash or surety bond.[**]
When a judge denies bail, he must state reasons for that decision on the record. There are two sets of factors that judges use as guidelines for making pretrial release determinations. One is contained in the Michigan Code of Criminal Procedure and the other is laid out in the Michigan Court Rules.
The Michigan Code of Criminal Procedure is a set of statutes that govern the proceedings in criminal courts and specify defendants’ rights and judges’ responsibilities. It is binding on judges and directs them to make findings on the record about the seriousness of the offense charged, the protection of the public, the defendant’s previous criminal record and “dangerousness” and the probability that he will appear at trial.
The Michigan Court Rules are guidelines established by the Michigan Supreme Court that function as internal operating procedures for courts. Similar to the code of criminal procedure, the court rules indicate that judges should consider a variety of “relevant information” about the defendant when determining whether he is safe to be released and likely to appear in court. These include:
- The defendant’s prior criminal record;
- His record of appearance at previous court proceedings;
- Any history of substance abuse or addiction;
- His mental condition and “character and reputation for dangerousness;”
- The seriousness of the offense charged, probability of conviction and likely sentence;
- The defendant’s employment status and financial history;
- The availability of responsible community members to vouch for and monitor him;
- His familial relationships and ties to the community.[††]
Although the court rules instruct judges to consider these factors, the court need not make findings on the record about each of these factors.
The court rules indicate that, when setting bail, judges should select the least restrictive conditions that they find sufficient to ensure a defendant’s appearance at trial. If a defendant is not ordered to be held in custody, the rules guide judges to order the defendant’s release on his personal recognizance, without the need for bail money. In fact, the rules contain a presumption in favor of personal recognizance bonds: “If the defendant is not ordered held in custody … the court must order the pretrial release of the defendant on personal recognizance, or on an unsecured appearance bond.” This should, in practice, make them the default.
The judge may believe that releasing a defendant on personal recognizance alone will pose a risk to public safety or will not reasonably ensure his appearance at trial. In that case, the judge may attach additional release conditions, such as curfews, substance abuse testing, enrollment in a treatment program, or remaining in the custody of a another person who agrees to monitor the defendant.
If the judge believes that these additional conditions would not be sufficient to reasonably ensure the defendant’s appearance at trial, he may require the defendant to post money bail. The court rules state that judges who wish to impose money bail must make an explicit finding that bail is required to assure public safety and/or the defendant’s appearance. Judges may choose which form of bail to impose: 1) a cash deposit or surety bond equal to the full bail amount, or 2) a cash deposit or surety bond equal to part of the bail amount. For partial payment, judges typically require an amount equal to 10 percent of the total for cash bail, or 25 percent of the total for a surety bond.[‡‡]
A defendant who is released on his own recognizance is free until and throughout his trial. Defendants who are required to post bail are detained in jail until they make the required payment to the court or until they find a third party to make the payment on their behalf. The court holds a defendant’s bail money until the conclusion of his trial. When the defendant has satisfied his appearance requirements, the money used for bail is either returned to him or applied to the cost of penal fines and court fees that may have accumulated as a result of his trial. If the defendant fails to appear, he forfeits the bail money, his pretrial release is rescinded and a warrant is issued for his arrest. If a defendant posted bail or a bond equal to less than the full bail amount and then fails to appear, the court will require him to pay the entire bail amount.[§§]
The state allows defendants to hire a commercial bail bondsman to post bail on their behalf. If a defendant cannot afford his bail, he may pay a nonrefundable fee, not to exceed 10 percent of the bail amount, to a bondsman, who will pay the full bail amount to the court on the defendant’s behalf.
The bondsman obtains the defendant’s release by posting the bail for him, but he also becomes obligated to ensure the defendant makes his court date. If the defendant appears as required, the court returns the bail money to the bondsman. If the defendant fails to appear, the bail money paid by the bondsman is forfeited to the court. Sometimes courts will only require the bondsman to post a portion of the full bail amount. If the defendant fails to appear in this instance, the bondsman will forfeit the portion he posted, and the defendant also becomes personally liable to the court for the remainder.
Since they stand to lose their bail money if their clients do not appear in court, bondsmen usually closely monitor defendants until trial. They even pursue defendants who “skip” — that is, flee the jurisdiction — using bounty hunters or “skip tracers.” The United States and the Philippines are the only two countries in the world that authorize the use of commercial bail bondsmen and bounty hunters to recover bail skippers. Both state law and U.S. Supreme Court precedent give bounty hunters broad authority to locate, arrest and extradite defendants who skip. If a bounty hunter fails to recover a bail skipper by the date that he is required to appear for trial, law enforcement may also begin pursuing him.
[*] The Michigan Constitution states “[a]ll persons shall, before conviction, be bailable by sufficient sureties.” Mich. Const. Art. 1, § 15. Michigan law specifies that "[e]xcept as otherwise provided by law, a person accused of a criminal offense is entitled to bail. MCL § 765.6(1). An exception is “interim bail.” Interim bail is when a court sets a specified bail requirement as part of a warrant, before the accused is arrested or arraigned. This allows law enforcement to collect bail while executing the warrant and release the defendant pretrial. MCR § 6.102(D). Interim bail may also be collected when a magistrate is not immediately available to arraign a misdemeanor defendant. Its purpose is to ensure the defendant appears at his arraignment. MCL § 780.581; MCL § 780.586.
[†] Mich. Const. 1963 Art. 1, § 15. Denying bail results in the imprisonment of a presumptively innocent person; therefore, courts who deny bail face additional speedy trial requirements to limit the amount of time that an individual remains in jail awaiting trial. Specifically, the trial must commence no later than 90 days after bail has been denied. If the trial does not begin in 90 days, the court must hold a bail hearing and offer bail to the defendant. MCR § 6.106B(3).
[‡] Mich. Const. Art. 1 § 16; MCL § 765.6(1). “Excessive” bail is a “figure higher than an amount reasonably calculated to fulfill the purpose of assuring the presence of the defendant” at trial. Stack v. Boyle, 342 U.S. 1 (1951).
[§] MCR § 6.106(A). If a judge denies bail, the defendant may only be detained for up to 90 days. After that point, his trial must begin or the judge must set bail. MCR § 6.106(B)(3). MCR § 6.106(C) describes release on personal recognizance as a grant of release in exchange for a promise to appear, with no requirement to post bail money.
[**] The difference between a secured and unsecured bond is that, in the first case, a defendant will be obliged to provide a sum of money (“surety”) prior to his release. Unsecured bonds mean that a defendant does not have to provide money to the court, but the court will determine a sum of money that the defendant will owe if he fails to appear as required during his trial. See MCR § 6.106(A)(2); MCR § 6.106(C).
[††] MCR § 6.106(F). Many of these factors may not actually be strong predictors of a risk to society or influence the likelihood of the defendant appearing for trial.
[‡‡] MCR § 6.106(E). In some cases, judges may also accept a piece of real estate in lieu of cash or surety bonds.
[§§] The above discussion applies to both felony and misdemeanor cases and is drawn from MCR § 6.001(A)-(B); MCR § 6.106(I)(2).