You’re all familiar with the term bail. But what exactly is it? When do you get it? What do you have to do to get it? People need bail when they are arrested, charged, and held in custody in situations where the police want to keep them in jail until trial. Bail gets you out of jail until trial, but depending on who you are and what the charges are, the freedom bail provides comes with a price.
Dominique Strauss-Kahn, former managing director of the International Monetary Fund, is this summer’s biggest bail story. After being arrested on allegations of sexual assault, DSK was ordered to deposit $1 million into court, post a $5-million bond (no deposit necessary), have an armed guard and an electronic tracking device (and pay for those costs himself), and surrender his travel documents. All these things if he wanted to get out of jail.
Was it worth it? Losing the fight for your liberty at the outset and remaining in custody puts pressure on the way you run your case. You may be presumed innocent and intent on exercising your right to a fair trial, but if you’re denied bail, you will spend months (even up to a year or more) waiting for your trial. In some cases, you can end up spending more time in custody waiting for your trial than you would if you are convicted and sentenced for the alleged crime.
Being in custody also affects the way you and your lawyer prepare for trial. You have limited and controlled access to your lawyer and there is always the concern that discussions with your lawyer will not be 100-percent confidential. (Remember Jamie Bacon? His conversations in jail with his lawyers were taped.)
So, you’ve been arrested and the cops won’t release you. They bring you in front of a judge and you apply to that judge to get out on bail. What does the judge consider?
The judge considers three grounds: 1. whether you’re a flight risk, 2. whether you’re going to commit more crimes if released, and 3. the general reputation of the justice system.
If there is a way, through conditions, that the judge can be satisfied that you will continue to make court appearances and not commit more crimes, then he or she is likely to order that you be released. Generally it’s the first two concerns that accused people need to overcome. The third category is not often argued successfully by the Crown.
DSK posed a huge flight risk. He had the financial means to escape American control easily, so the judge had to impose conditions that meant something to him. Hence the large amount of money being posted and the armed guard.
The average person is not going to be as wealthy. So, simple conditions on a bail order will often satisfy the judge that he or she will continue to make court appearances and stay out of trouble. These conditions can include anything: a curfew, reporting to a bail supervisor, abstaining from going to certain places, not contacting certain people, or abstaining from drinking.
For more serious crimes or for people that have long criminal records, the court may require a little more assurance than conditions. The courts can require that an accused deposit a particular sum of money into court. The amount of money will depend on how much a person is worth. The point of the order is to make it worthwhile to the accused to abide by the conditions of his or her bail order and show up to court, otherwise the money may be forfeited to the Crown.
Let’s say the nature of the crime is even more serious and there is a greater risk of reoffending or not showing up to court. Then the accused can offer the court the peace of mind of a surety. A surety is a person who is willing to supervise the accused and making sure the accused abides by the conditions and shows up to court. The surety is responsible for turning the accused person in if he or she breaches the bail order.
Most importantly the surety must have assets. The surety pledges to the court that he or she will watch the accused and the court accepts a monetary pledge on the strength of the surety’s assets. If the accused breaches the bail order and the surety does not turn in the accused, then the Crown can proceed against the surety’s assets and forfeit the amount pledged to the Crown.
As for DSK, his bail conditions were extremely onerous. Was it worth it? Probably. The case against him tanked.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at firstname.lastname@example.org.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.