How and Why a Defendant’s Bail is Set

While bail is a common practice in the criminal justice system to ensure a defendant’s appearance in court, there are situations where bail might not be set or might be set at $0 (also known as being released on personal recognizance). Some of the factors that can influence whether bail is set include:

  1. Nature of the Offense: For minor offenses or offenses that are not considered serious, the court might choose to release the defendant on their own recognizance without requiring bail.
  2. Flight Risk: If the court believes the defendant is a high risk of not showing up for court appearances (a flight risk), they might set a higher bail amount or impose stricter conditions.
  3. Public Safety: If the court believes that releasing the defendant poses a threat to public safety, they might choose to deny bail.
  4. Community Ties The defendant’s ties to the community, such as family, employment, and history of showing up for court, can influence the court’s decision on whether to set bail.
  5. Criminal History: The defendant’s past criminal history and any history of failing to appear in court can also impact the decision on whether to set bail.
  6. Risk of witness Intimidation/Tampering: If the defendant is accused of a crime involving intimidation of witnesses or tampering with evidence, the court might set stricter bail conditions or deny bail altogether.

It’s important to note that bail decisions can vary from case to case and jurisdiction to jurisdiction within Michigan. In some cases, the court might choose to release a defendant on their own recognizance without requiring bail, while in others, they might set a bail amount based on the factors mentioned above.

In Michigan, bail rules and procedures are governed by state law and court rules. The primary sources of information would be the Michigan Compiled Laws (MCL) and the Michigan Court Rules (MCR). Here are some general factors considered relating to setting bail in Michigan:

  1. Setting Bail: Bail is typically set by the court to ensure that the defendant appears for their court proceedings. The amount of bail can vary based on factors like the seriousness of the charges, the defendant’s criminal history, and the risk of flight.
  2. Types of Bail: Michigan courts can impose various types of bail, including cash bail (paying the full amount in cash), surety bonds (using a bail bond company), and personal recognizance (release without paying money, based on the defendant’s promise to appear in court).
  3. Bond Conditions: The court can attach conditions to the bail, such as travel restrictions, mandatory check-ins with law enforcement, electronic monitoring (tether), and prohibitions on contacting victims or witnesses.
  4. Bail Hearings: If the defendant cannot afford the bail amount set by the court, they may request a bail hearing. During this hearing, the court will consider factors like the defendant’s ties to the community, their flight risk, and the seriousness of the charges, etc. to determine whether to modify the bail amount or conditions. The court will determine whether or not there was an abuse of discretion when the bail was originally set.
  5. Pretrial Services: Some jurisdictions in Michigan offer pretrial services programs that assess the defendant’s risk level and provide recommendations to the court regarding bail and release conditions.
  6. Bail Forfeiture & Refund: If the defendant fails to appear in court as required, the court may issue a warrant for their arrest and may forfeit the bail. Conversely, if the defendant complies with all court appearances and requirements, the bail amount is refunded at the conclusion of the case, regardless of the case outcome.
  7. Excessive Bail: The Eighth Amendment of the United States Constitution prohibits the imposition of excessive bail. If the bail amount is deemed unreasonably high, the defendant or their attorney may challenge it as a violation of their constitutional rights.

For more information see MCR 6.106