What is the Purpose of a Bond Hearing?
Bond Hearings are a critical component of every criminal case. They act as the wheel that turns the entire process into motion in the judicial system. When people are arrested, they are typically brought before a judge within 72 hours of their arrest. At that point the judge has the opportunity to review his or her probable cause finding, and the bond hearing becomes an opportunity to address the nature of the charges that the defendant is facing. Essentially, the State makes its case for having the defendant remain in custody, and the defendant and their attorney are able to argue that the defendant can be released from custody while the case is pending.
Bond Hearings are extremely important, and cannot be taken lightly. If a defendant is given a bond that is too high, then it becomes difficult if not impossible for the defendant to afford a bond agent to post the bond. Unfortunately, many people arrested do not have the financial capability of posting a cash bond. If they are held on a cash bond (also referred to as cash only), then they are basically being held without a possible avenue of hope to getting out of jail. This is where the help of an attorney comes into play. A good attorney will be able to argue at your bond hearing why the bond should be reduced. Depending on the charges faced, and the personal history of the defendant, it may be possible to get released on a recognizance bond. A recognizance bond requires the defendant only show up on future court dates. Often the defendant will have to agree to conditions of release. For example , the defendant may be required to stay away from certain people or locations, or perhaps be required to check in with a pre-trial services officer once they are released. A low bond is much more preferable to a cash only bond, and the best case scenario is a recognizance bond.
The importance of a bond hearing is profound. If a person cannot afford a bond, then the case becomes that much harder to defend. For example, if the defendant is held at the jail, they will not be able to leave and work on their case or start earning a living. By the time the case gets to disposition, this person may find themselves homeless and unemployed. That would make it difficult if not impossible to pay restitution or get housing or employment after the case is resolved. Furthermore, it is a matter of principal in the American judicial system that a person is innocent until proven guilty. This idea is the bedrock of the American system of justice, and the idea that a person gets to go home and wait for their case to unfold on their terms is a basic tenet of our legal system. If a person is charged with a crime, and they have money for a bond, then they absolutely should be free until the case is disposed. In the eyes of the law, a person is presumed innocent until proven guilty, and that person should be afforded the opportunity to have their day in court with the benefit of being free.
The Process: What to Expect at a Bond Hearing
At a typical bond hearing there will be the judge, the clerk of the court, the prosecutor, the defendant and the defendant’s attorney. Typically, in addition to the defendant in custody the attorney for the defense will either be there with the attached law firm or if this is the first bond hearing the attorney will appear telephonically/ by video. The judge will first ask the defendant whether he/she has read the bond motion, for or against, and then the judge will ask if the defendant has any objection to the bond motion and whether the defendant is seeking to address the issue of bond. Assuming the defendant has no objection, the defendant will not be asked to present evidence, argument, or otherwise speak out at the bond hearing. Usually, the defense attorney will just request a no bond status for the defendant on a serious "non-bondable" offense such as a murder charge.
In addition, in very serious serious felonies, the State will not seek a bond at the bond hearing and will ask for a no bond status. If the defendant shows up to the bond hearing, the defendant is hoping that the judge will agree to grant the defendant’s bond. If the defendant does not show up for bond hearing, the bond hearing will be held in absentia. When the judge has made a decision whether it will grant or deny a bond to the defendant, the judge will state his/her reasons for granting or denying the bond and the reasons why the judge believes the defendant should be granted a bond or not.
The prosecutor will provide the judge with similar reasons why the defendant should or shouldn’t receive a bond. If the defendant is to be released on bail, then the judge will usually set the bond at a very high amount so the defendant cannot afford to come up with enough money to pay his/her way out of jail. The defendant will then go back to jail and await the next court hearing.
Why Bond Amount Varies
Along with the circumstances and the facts of the case, a judge will consider the following factors:
Criminal record.
The judge must consider the criminal record of the defendant. If the defendant has prior arrests for bond jumping he/she will be required to pay a greater amount to ensure that they come back to court and don’t jump the bond again.
Severity of the offense.
The severity of the offense is another key consideration. If the charges are serious, the judge will set the bond at the highest amount based on the record of the person. Getting a bond on a serious offense will require a lot of financial backing.
Flight risk.
If the judge feels that there is a flight risk, the bond will be set high. A flight risk is someone that the judge feels would flee the jurisdiction if released.
Roles of Lawyers and Other Representatives
Sections of the Illinois Compiled Statutes give defense attorneys and prosecutors various duties and responsibilities during bond hearings (also called bond court or bail). In this section, we will review both roles.
Defense Attorneys
In all criminal cases in Illinois, the defendant is represented by a defense attorney. This attorney is responsible for looking out for the best interests of their client. The only exception to this is if they are a Public Defender. Public Defenders have to comply with special rules that prevent them from doing certain things that private attorneys are allowed to do. But for purposes of a bond hearing, they have the same job as any private lawyer.
Because a bond hearing is a defendant’s first interaction with the criminal justice system, a defense attorney must educate their client on what to expect and what will happen next. In the vast majority of cases, defendants sit in custody of local law enforcement until their bond hearing. For some, this could be days or weeks. So, the attorney has this time to prepare them for the few minutes they will spend in front of the judge.
The most important part of a bond hearing for a defense attorney is advocating for the defendant. This means that they need to try and get the judge to set a reasonable bond for their client’s release. If a judge refuses, then the attorney will apply for a bond reduction hearing. This is a separate proceeding in which the bond judge is required to consider new evidence that may justify a lower bond.
If the bond is set at a reasonable level, it is not usually worthwhile to file an appeal for a lower bond since there is no guarantee that this will result in a reduction. The attorney must weigh the cost of this decision with the probability of success. In practice, a bond reduction appeal is usually reserved for cases where the defendant cannot afford the bond set by the trial judge.
During the bond hearing, the judge will consider a few factors while looking at the defendant’s case. This could be prior convictions, current charges, gang affiliation, and whether or not the defendant is a citizen of the U.S. All of these details can be crucial to establishing a defendant’s flight risk, and set the level of risk that the judge is willing to consider.
Attorneys will often hire mitigation specialists after a case has concluded to improve their future chances of freedom. This service can determine what will be most likely to prompt the judge to open bond back up for the defendant.
Many factors can affect the case for a defendant, largely intent on specific crimes. For instance, those accused of Financial Crime, Meth-related crime, Prostitution, and Career Criminals don’t have many chances of convincing the court to reduce their bond. For these individuals, it’s highly recommended to seek an experienced attorney to discuss options for release along with the challenges that lie ahead.
Prosecutors
For any bond hearing these days, there will be a prosecutor present. When a court date is set by the local police department, warrants, or other restrictions, the Judge will have the prosecutor submit comments about the bond. This is more than simply stating whether the bond should be set high or low. The prosecutor will frequently discuss whether or not the bond hearing should be held at all.
The factors that lead to a Bond Hearing being denied are quite numerous. For example, a defendant accused of Murder is an obvious risk and his or her bond will be extremely high or even non-existent in their case. But even lesser charges can increase the risk and lead to a bond having such a high figure that it is impossible to be set. In the end, the Officer’s report is the determining factor, and that is based on his or her understanding of the situation.
Likewise, in the Bookings process, the Defendant’s names are searched for in the LEADS system, California state searches and PACER searches, all of which may contain information about previous felonies. Including Los Angeles County Jail records, may reveal prior escapes, whether they are a sex offender, lensing a Parsing, Paroled, Probation or a Registered Sex Offender.
During the bond hearing, the prosecutor is obligated to inform the court of any prior charges or convictions that pertain to any of the facts revealing the risk of a flight. An example of this in Chicago would be our Felony DUI penalties.
The prosecutor also receives the probation report prior to the bond hearing, so they know the level of parent or parental termination preceded by the crimes alleged. In addition, they know whether the defendant has made any threats toward the victim.
At a bond hearing, the presiding judge will consider a few factors that the judges can look at during their assessment. This is mostly related to whether or not the defendant poses a criminal flight risk.
Types of Bonds and Their Consequences
The nature of the bond affects whether the defendant gets out on a secured or unsecured signature bond. A secured signature bond is a bond that the defendant must give, through a surety company or a trusted family member, up front at the bond hearing. An unsecured signature bond is simply a promise that the defendant will appear back in court on the first setting, or at a future setting, so that the bond can be lifted. The nature of the bond also affects the conditions that may or may not be imposed by the court.
A cash deposit bond is a type of bond in which the defendant pays cash directly to the court. A cash deposit bond is always for 10% of the bond actually set. For example, if the magistrate sets the bail bond at $10,000.00, the defendant pays only $1,000.00, and the defendant walks out the door. A surety bond is a type of bond for which a ‘bondsman’ or commercial bonding company agrees to be liable for the full amount of the bond, which since Jan. 1 2012 is always $15,000.00 of the previous amount. The bondsman charges the defendant 10% of this amount ($1500.00) and the fee is due on the day the defendant wishes to bond out. A recognizance bond is a type of bond whereby the defendant agrees to appear before the court at a later date and time. The defendant is not required to pay anything to the court, sign a written promise, or physically present themselves in the jail for booking.
If the defendant makes an application to have the magistrate set the bond, the statutory bond amounts may be held against him. If the defendant asks the jailer to set the bond amounts, then the jailer is not permitted to set the amounts any higher than the amounts set in the schedule for the appropriate offense. Under Texas Rules of Criminal Procedure, Article 27.08, section 3, titled "All bonds necessary to procure release," and entitled "Set by security officer," the applicable section reads as follows: "The security officer shall take a security bond of any defendant charged with the commission of a misdemeanor, the offense of driving while intoxicated punishable as a Misdemeanor by confinement in jail, or a traffic offense, in an amount not exceeding $10,000, if the defendant is not a fugitive from justice, is not on bail for another offense, does not demand an examining trial, and does not request additional conditions or restrictions on bond."
So, the security officer has the legal authority to set a surety bond, but not a cash deposit bond, a secured signature bond, or a recognizance bond. A bonded defendant (a defendant who pays the bond in a cash or surety amount set by the magistrate) must return to the property room at 7:00 a.m. to pick up his property and receive a copy of the bond paperwork before he will be released from jail. The Defendant will be released to the custody of the bond company, their trusted family member, or other responsible party who delivers them to the jail. To be released from jail, the defendant must first go to the property room and pick-up their personal belongings. Next, the defendant will be taken to the doorway leading to the main jail area to be photographed and fingerprinted. Finally, a jailer will walk the defendant to the front door of the jail and escort them outside.
Bond Decision Consequences
A bond decision has numerous consequences from a release standpoint and of course from a bigger picture standpoint. For example, when a defendant is released on bond the defendant is released with conditions. The conditions might involve a drug test or a meeting with pretrial services. The conditions can include asking the accused person to move out of their house. A condition that is often used when the charges are for Domestic Violence is for the accused to move out of the house. Sometimes a judge’s bond decision includes a requirement that the defendant must participate in drug court, mental health court or veterans court. At times there is a strict no contact order between the defendant and the alleged victim placed at the bond hearing. When the court places a no contact order at the bond hearing the Judge is saying that the defendant can not have contact with the alleged victim until the case is resolved. A judge could include a provision that says until further order of the court. This means that even after the bond case is over the defendant can not have contact with the alleged victim. Sometimes these provisions last a long time: Finally, a denied bond can have a devastating effect on the defendant. When a judge denies a bond the defendant remains in custody. From day one of a case the accused person is looking at over 90 days in jail. That’s about a year in prison . From a practical standpoint a person who remains in custody is going to bleed money. In most cases the person is going to plead guilty. The reason most clients plead guilty is because they just don’t have the resources to go to trial. Here’s why…it costs money to get witnesses to court. The person gets paid by the State of Georgia to show up for court. If witnesses are coming from out of state it is often too expensive for them to come to court. If an accused goes to jail and there is no bond or the bond is set so high that the defendant cannot afford the bond they are going to be sitting in jail. The ability to prep a case and move it forward is limited. On the rare occasion that a client does not take a plea they often have to fire the lawyer if the case goes to trial. When a defendant is setting in jail the case is resting on the shoulders of the defendant’s girlfriend or family members. Occasionally a defendant will have just one or two witnesses that can return to court if a trial date is pushed back. If these people are not coming then the defendant has to sign a plea. When the defendant is out on bond the defense lawyer is collecting up evidence and preparing the case. It usually takes a few weeks just to get to know the people that the lawyer is working with. This type of preparation is not available when the defendant is in custody.
Appeals – Challenging a Bond Hearing Decision
In addition to the result of a bond hearing, the most common aspect which is appealed are the conditions of the bond. While there are certain circumstances in which a judge is authorized to deny a bond, the great majority of judges allow a defendant to be released on a reasonable bond and set certain conditions. For instance, it is not unusual for a judge to require a defendant to wear an alcohol monitoring device if the alleged offense is one that involves alcohol. In many instances, a defendant is even required to have a curfew with the provision that the defendant must be at home but leaving the home is permissible with a contact schedule and prior approval from pretrial services. All of the above constitutes conditions of the bond which are typically reviewable by a bond motion which can be filed in the county court of record. Under the new bond reform statute, the responsibility and authority to implement conditions of a bond has been taken away from the judge and placed on the pretrial services department to perform an analysis of risk and determine appropriate conditions based on that analysis. My analysis is that this new statute which was recently enacted is something that is intended to be tested by higher courts. Certainly, the legislature has provided that there are certain factors that judges are now required to follow in setting an appropriate monetary bond. To the extent that judges have failed to get away from the use of the "Magic number", which is defined as using a bond amount based on similarities in prior offenses with the same or similar sentence imposed, a good argument can be made that the legislature has determined that judges should not simply be looking to prior sentences. In other words, if the judge imposes a monetary bond that is far greater in amount than a wise judge would do based on the facts and circumstances, then it would no doubt be subject to reversal on appeal. Within the same statute, the responsibility of the court to set a reasonable bond is still in effect. The key to remember however, is that a trial judge has broad discretion when it comes to setting conditions on bond. Due to the broad discretion that a trial judge has, most any conditions imposed on bond are going to be sufficiently reasoned. Most common examples of conditions imposed on bond would be drug testing, curfews, alcohol electronic monitoring and contact schedules. As such, the best approach on appeal is to show that the conditions imposed (or lack thereof) are unreasonable under the circumstances. For example, if the court has imposed a condition that is beyond what is necessary to reasonably assure public safety or to reasonably ensure court appearance, the condition could be appealed.
Frequently asked Questions About Bond Hearings
Below are some questions and answers that are commonly asked about these hearings:
What results from the bond hearing?
If the Court believes that the Defendant does not present a flight risk, and has not committed any violent crimes recently, the Court may release them on their own recognizance. This means that the Defendant will not have to post any monetary amount to be released from jail.
Can I watch my loved one get called up at the bond hearing?
Unfortunately, due to the amount of people that need to be processed for the day, the hearings are held one after another in a large room. Therefore, family members are unable to sit in on their loved one’s bond hearing.
Will my loved one appear in front of the Judge?
No. The person is only brought into Court if the Judge sets a cash bond in a serious case (such as a murder case). If a cash bond is set, the person must be brought into Court to have a bond hearing.
How do I find out what money was set on the bond and when it can be paid?
Keeping your attorney informed of your loved one’s location is important. If the person is in CID, their loved one will not be able to pay their cash bond. The bond will need to be paid at the Circuit Court (instead of at the District Court).
Conclusion – Understanding a Bond Hearing
If the judge believed in your bond hearing and your case that there is no probable cause that the defendant actually commit the crime charged, then he/she will release the defendant from jail. You won’t have to do anything else, and the case will be over.
However, if the bond hearing judge believes that there is probable cause that the defendant committed the crime charged, and/or that it is in the interest of justice to detain the defendant pre-trial, then the judge will not release the defendant from jail. At this point, the judge will order the defendant to remain in jail until the next step of the process, which is often a Preliminary Examination.
Hopefully, you’ve been able to recognize from this article that bond hearings are very important for defendants in criminal cases in Michigan . Being released pre-trial has many, many benefits for defendants. However, understanding the bond hearing process and securing release can be very difficult.
Hopefully, after reading this article, you have learned some helpful information on bond hearings in Michigan. Understanding what happens in a bond hearing from the getting arrested until the end, should help you feel more comfortable and confident in your attorney’s abilities if you or someone you know is faced with seeking release after being accused of a crime.
If you are currently going through the process of handling a bond hearing, or if you are facing an upcoming bond hearing, having an experienced Michigan criminal defense attorney at your side may be the best way to protect your freedoms and rights in the criminal justice system.