Why people charged with crimes are often released on bond

IDAHO FALLS — Of all the questions EastIdahoNews.com receives, one of the most frequently asked is why people accused of a crime are allowed out of jail.

In 2019, one in 50 Idahoans will be arrested and booked into jail for a crime, according to Idaho State Police Uniform Crime Reporting statistics. Nearly all of these people have the option to bond out. Here’s what that means.

What’s a bond?

A bond, also known as bail, is money or collateral paid to the court by a defendant to ensure the defendant returns for future court dates.

But why are defendants — who are sometimes charged with dangerous or violent crimes — allowed to pay money to get out of jail before trial at all?

The truth is that much like the right to bear arms, the U.S. Constitution protects the right to bail.

The right to bail originated in England, and after the United States won its independence, the newly formed country cemented its commitment to bail when President George Washington signed the Judiciary Act of 1789 into law, which admitted the right to bail for all noncapital offenses.

The Eighth Amendment, ratified in 1791, ensures a defendant’s right to bond by stating, “Excessive bail shall not be required.”

Although the Supreme Court ruled a criminal defendant does not have an absolute right to bail, holding a defendant without bond is generally considered excessive unless the defendant is accused of a capital offense.

That means it is up to individual judges to determine the appropriate amount for bond. Those judges use the Constitution and Idaho state law to direct their discretion.

How it works

Magistrate judges, who handle misdemeanor cases, and district court judges, who preside over felony cases, both have the authority to determine bond amounts. Judge Dane Watkins, sitting on the 7th District Court bench, has set hundreds of bonds during his tenure.

“Most people get bond amounts,” Watkins said. “Those that don’t would be capital offenses, which are punishable by death. Obviously, those are rare occurrences.”

Watkins said defendants accused of violating probation are not entitled to bond, but can still receive it at the court’s discretion.

In most cases, defendants not charged with a capital offense or a probation violation have a right to a bond hearing within 24 hours. Often the process takes even less time.

“On misdemeanors, there’s a schedule that’s available for bond amounts,” Watkins said. “They (the defendants) could, for instance, be released and be out of custody after posting the bond after the paperwork is completed at the jail within hours.”

A first offense driving under the influence charge, for example, requires an Idaho resident to pay a bail of $500 for the misdemeanor, according to the Idaho Bail Bond schedule. The Idaho Supreme Court determined these set amounts.

However, if a defendant is charged with a felony, then instead of relying on a pre-set bond schedule, the judge assigned to the case uses various factors, outlined in Idaho Criminal Rule 46, to determine the appropriate bond for the defendant. Idaho Criminal Rule 46 sets the rules for who can be released on bail.

“There are all sorts of different offenses that we see, ranging from murder down to possession of a controlled substance, felony DUIs, burglaries, grand thefts — and each judge has discretion on any of those offenses based on these factors,” Watkins said.

The factors used to gage a defendant’s likelihood to return to court and their potential danger to the community if released allow a judge to analyze a defendant’s previous failures to appear at court, financial status and employment, and family relationships, among other variables. For example, if a defendant had always showed up at previous court hearings, and if the defendant is responsible for taking care of his or her family, then the judge may determine that the defendant should receive a lower bond because their record indicates they’re not a high flight risk.

“Standard bond amounts I would suggest on felonies are somewhere between $25,000 and $50,000,” Watkins said. “In this community, we’ve seen million-dollar bonds, depending on the offense.”

Regardless of the amount, once a bond is set, a defendant has three payment options to get out of jail: cash, collateral or a bail bonds company.

Danielle Kingston, owner of A+ Idaho Bail Bonds, helps hundreds bond out of jail each year. Most defendants she posts a bond for, she says, are good people who simply made a mistake.

“Bail is a constitutional right,” Kingston said, referring to the Eighth Amendment. “Our philosophy is it really doesn’t come down to credit. A lot of what we do is on a handshake.”

Defendants choosing to post bond through a bail bonds company are required to pay 10 percent of the bond amount, along with additional jail and state fees. For example, if a judge set a defendant’s bond at $500, then that defendant would pay $50, plus other minimal jail and state fees, to be released through a bail bonds company.

Running a bail bonds company is not without risk because if a defendant fails to attend court, then it is up to the company to return the defendant to custody or risk being liable for the entire bond amount.

And in some cases, judges choose to set a bond for a defendant with the stipulation that if the bond is paid, the defendant is released to pre-trial services or with conditions. Pre-trial services or a conditional release means that not only are defendants required to appear at future court dates, but they are also obligated to meet a variety of other demands.

In some cases, a suspect is given to pre-trial services without a bond. This might be the case if the defendant is a first-time offender, never had any failures to appear or meets a variety of other criteria outlined in Idaho Rule 46. Judges make the decision based on what they think is appropriate given the circumstances.

“The court can set all kinds of conditions, upon posting of a bond or in lieu of a bond,” Watkins said. “Just some level of supervision while the case is pending. We have active pre-trial services here in the county, and that’s used regularly.”

He said two of the most common pre-trial conditions are drug testing and management of travel in and out of the community or county.

Regardless of the pre-trial conditions, if a defendant fails to meet them after posting bond through a bail bonds company, that too can lead to the bond being revoked. That leaves companies like A+ Idaho Bail Bonds in a potentially precarious situation.

But Kingston chooses to keep her faith in her customers.

“Most people want to do the right thing,” she said. “Most often, they just need to have a little bit of assistance to navigate through the court system.”

After defendants post bond, the money acts as collateral to ensure the defendants’ return to court. Most of those defendants honor that obligation, Watkins and Kingston said.

“Everyone is entitled to bond based on those factors, subject to the capital cases,” Watkins said. “The idea of guilt or innocence is not established by the setting of bond. Allow the process to run its course.”

By posting bond and returning for future court dates, defendants are doing just that.