Michigan Criminal Defense Lawyer Blog
As a Lawyer who spends a substantial part of his practice handling Criminal Cases, primarily in Macomb, Oakland and Wayne Counties, one of the typical calls that comes into my office is from a family member or friend of someone who has recently been arrested and is in Jail. Often, the caller is distressed about the situation, and wants advice, first and foremost, about how to get their family-member or friend out of Jail.
The first thing to learn when trying to determine a jailed person’s situation is whether or not they have been “Arraigned.” An Arraignment is the first Court Proceeding in a Criminal Case. It follows a person’s Arrest and “Booking” (mug shots and fingerprints).
While an Arraignment serves several purposes, the one that matters most to anyone going through it is the setting of Bond, which is done at or near the end of the proceeding. Bond is the amount of money that will be necessary to “Bail” the arrested person (also known as the Defendant) out of Jail. When a Judge or Magistrate is ready to set Bond, there are several things he or she looks at in making their determination.
First, there is the nature of the Crime. Is the offense a Felony or Misdemeanor? Even though, at the outset of a case, a Defendant is presumed “innocent until proven guilty,” a person charged with a First-Offense Drunk Driving will be considered considerably less risky to put back on the street than a person charged with being a serial killer. Thus, the severity of the offense being charged is one of the things considered when setting bond. This is spoken of in terms of “Protection of the Public.”
Of similar importance is the prior record of the person being charged. Someone with no, or a rather minor prior record, is considered a safer bet for release than someone who has a lengthy prior record, if for no other reason than a Defendant with the lengthy prior record seems to not be able to stop getting in trouble. Also, the worse a Defendant’s prior record, the more likely that the “next” offense, at some point, will net them a Jail (or Prison) sentence. Thus, there is, with such people, an increasing risk that, with each new case, they may become scared and simply not show up to Court out of fear of getting locked up.
In any case, one of primary considerations is the setting of a Bond amount sufficient to assure that the Defendant will show up in Court. Somewhat ironically, a person with a few prior cases can point to their record of not missing Court in those cases in support of their promise to return to Court in the new case.
A person’s ties to the community are part of this consideration. If a person charged with possession of Marijuana is here on vacation from New Zeland, once they’re out of Jail, an outstanding arrest warrant from a Suburban Detroit Court will probably never affect them in the slightest, unless they return to the Detroit area and have some Police contact. In such a case, as you can see, there would be some serious question about that person’s showing up for Court once released. Of Course, a Court can let them out of Jail on a small Bond and require surrender of their Passport as a condition of Bond.
For someone who lives locally, and who has family (and perhaps a job) here, those ties to the community tend to indicate that they’ll come back and take care of their case, rather than complicate things by skipping out. When a person “skips out” on a Bond, a Bench Warrant for their arrest is issued, and the Bond amount previously set is forfeited to the Court. A new Bond must be set in their case. Sometimes a Judge will do that at the time they don’t appear, while other times that is handled once they are brought back before the Court. In either case, absent a good explanation for now showing up in Court (like the Defendant was in the hospital), any new Bond amount is usually significantly higher than the original Bond amount.
Arraignments can take place either by physically bringing the Defendant to the Court, or they can be handled by video, either from the Police Station or the County Jail. In Macomb County, the Courts in Romeo, Sterling Heights and Clinton Township often use video arraignments. Courts in Eastpointe, Roseville, St. Clair Shores, Warren, Shelby Township and New Baltimore usually have the Defendant’s brought into the Courthouse to see the Judge or Magistrate in person.
In some cases, a Police Officer or Detective, or Sheriff’s Deputy will be with the Defendant at the arraignment, or beside them on the video. Usually, the Judge or Magistrate will ask that Law Enforcement Officer about the person being charged, and their feelings about Bond. In responding to the Court, the accompanying Law Enforcement Officer will advise the Judge or Magistrate about the Defendant’s prior record, if any, and any outstanding Arrest or Bench Warrants that they may have. Where the Officer points out aggravating factors regarding the case and the Defendant (for example, the Defendant has a bad prior record and it’s alleged they severely injured someone in the offense with which they are being charged), the Officer will often suggest that the Court set a high Bond.
In other cases, especially those where the Defendant was not arrested but rather later informed of the need to turn themselves in for Booking and Arraignment, and absent a bad prior record, the Officer will advise the Court that the Defendant was cooperative and voluntarily turned themselves in as requested. In those cases, a Personal Recognizance or small Cash Bond is often set.
A Personal Recognizance (also known as a P.R., or Personal) Bond allows a person to be released from Jail without paying any money. Most of time, an amount is set as part of a Personal Bond, but that amount is what a Defendant would have to pay if they fail to show up in Court.
Money Bonds require either the posting of cash or a “Surety.” Thus, if a Defendant’s Bond is set at $5000 cash, that means that someone has to put of the whole $5000, or have a Bond Agent post a “Bond” for that amount. When a Bond Agent posts a “Bond,” it’s literally like a voucher, meaning that if the Defendant shows up as directed, it’s never cashed, but if they fail to show up, then the voucher is called in and the Bond Agent will lose whatever amount of money they posted in the “Bond.” Often, they are given an opportunity to arrest the Defendant and bring them before the Court before that happens. If you’ve seen the show “Dog the Bounty Hunter” then you have seen this process in action.
Bond agents typically, but not necessarily always, charge a fee of roughly 10% of the amount of the Bond. To use our $5000 example from above, if a Bond agent is to post that for someone, then they’ll want $500 for their services. This fee is what they earn, and is not returned at the end of a case. Often, the Bond Agent will want collateral to secure the Bond amount, so that if the Defendant takes off for good, they can at least cover any loss they will suffer if the Bond (remember, “voucher”) they posted gets called in. In high Bond cases, a Bond Agent may want titles to vehicles or deeds to real estate as collateral.
Some Bonds are what we call 10% Bonds. This means, to continue with our $5000 Bond example from above, that if the Court were to have set Bond at $5000, Cash, Surety (“voucher” posted by a Bond Agent) or 10%, instead of paying a Bond Agent $500 to post the $5000 Bond, 10% of the Bond amount, or $500, can be posted on Behalf of the Defendant to get them out of Jail. That money, if it is put in the name of someone other than the Defendant, is returned to that person at the end of the case, as long as the Defendant shows up to Court when they’re supposed to. If the Defendant skips out, then the person posting the Bond loses their money, and owes the other 90% on top of that. When a Bond is posted in the Defendant’s name, the Court keeps it and deducts any outstanding fines and costs from whatever is posted before returning any amount that might be left over.
As if all that isn’t enough, some Courts charge a 10% fee on cash or 10% Bonds. To use our $5000 bond example one last time, assume the Court set Bond at $5000, Cash, Surety or 10%. The Defendant’s wife pays $500 at the Court, and the Defendant is then released from Jail. When the case is over, the Defendant owes the Court $400 in fines and costs. In those Courts that charge a 10% fee, the Defendant will have $450 of the $500 that was posted available to pay towards fines and costs. Therefore, if the Bond was posted in the Defendant’s name, they’ll get a check for $50 back. If the Bond was posted in the Wife’s name, she can either sign it over to her husband to use toward fines and costs, or not. If she does not, then the Court will refund $450 to her. Obviously, in Courts that do not charge a 10% fee, then the whole $500 posted can either be used to pay fines and costs, or refunded.
Beyond the money component, there are also what are known as “Bond Conditions,” and we’ll examine those in a future post. For our purposes here, “Bond Conditions” are anything the Judge or Magistrate orders the Defendant to do, or not to do, upon their release from Jail. As a quick example, a person Arraigned on a 2nd Offense Drunk Driving (DUI) might be ordered to wear something called a “SCRAM” tether, which is like a big ankle bracelet that tests a person’s skin to detect the presence of alcohol. Typically, the Court will order such a Defendant to not consume any alcohol whatsoever, and to have the SCRAM unit hooked up within 24 hours of their release from Jail. Thus, the order to not consume any alcohol is a Bond Condition, and the order to wear a SCRAM tether and have it hooked up within 24 hours from the Defendant’s release from Jail is another Bond Condition.
This subject runs a little deeper than the treatment I’ve been able to provide here, but as a general overview of the Bond process, these are the essential components that anyone facing this situation will have to deal with. When a Bond agent is needed, the same exercise of good consumer skills apply as when looking for a Lawyer. A person should call around, and talk to as many different Agents as they can, ultimately choosing the one they feel the best about after comparing them to each other and considering, amongst other things, what they offer and how much they charge.