Our cash bail system further exacerbates injustice in our communities. Pretrial freedom should not be reserved only for those who can afford to pay the price.
In Minnesota, our Constitution gives all people the right to bail. Despite this, there are over 3,000 people locked up in jails across the state who haven’t even had a trial yet, making up 56% of people in Minnesota jails, an amount that is dramatically higher than 50 years ago. This is also referred to as “pre-trial detention.”
People held in pre-trial detention are disproportionately likely to be Black and Indigenous and they are also much more likely to be poor. That is because cash bail makes it so that rich people can buy their freedom while poor people cannot. It’s an unjust and unconstitutional system that makes it a crime to be poor in Minnesota.
Bail is the amount of money that people charged with crimes have to pay in order to be released from jail while they fight their case.
In Minnesota, everyone has a constitutional right to bail. That means that a judge cannot keep someone in jail without setting a bail amount that the person can pay to get released from custody. Bail is not set in every case. Instead, in some cases, judges set other conditions that a person must obey in order to be released, called conditions of release. In other cases, judges require the person to pay bail and obey other conditions.
Arrest – bail setting process begins when a person is arrested after being transported to a jail, where they’ll wait to be held to see a judge. This typically occurs within 48 hours, but it may be impacted by weekends and holidays.
Bail Hearing – A person’s first court appearance where your attorney or public defender will argue for their release. Prosecutors might agree or argue for conditions for release. Judges will consider the case and decide bail and any conditions they choose to impose.
Conditional or Alternative Bail – Bail is set unless they are released on their own recognisance. This usually includes an unconditional release with a higher bail amount or a conditional release with a lower bail amount but other conditions of release.
Modifications – A person can ask for their bail to be reconsidered by the judge. This can be for a variety of reasons.
When setting bail and other conditions of release, judges must follow certain rules set by the Minnesota Supreme Court. These rules say what factors judges are allowed to consider and what types of conditions they are allowed to impose on people charged with crimes.
The rules start with a presumption that all people should be released pre-trial. That means that in every case, the judge’s starting position should be that they are going to release the charged person without requiring bail or conditions. The judge can only require bail or other conditions if they decide that it’s necessary to protect public safety or make sure the person appears in court.
If the court chooses to impose bail or other conditions, it has to consider each person’s individual circumstances to figure out what conditions of release are appropriate for that person. Courts must consider things like the offense charged, the evidence against the person, family and community ties, employment, criminal convictions, prior history of appearing in court, and the safety of the victim, the community, or any other person.
The following are examples of the types of conditions judges can impose:
In Minnesota, there are three ways that someone can post bail: money, bond, or People’s Bail Fund of Minnesota.
Money: It has to be cash, and it must be the exact amount. It is also required that it is paid at the jail, with a photo ID.
Bond: You can use a bail bond company that will have a 10% fee, and a cosigner is required.
People’s Bail Fund of Minnesota: A revolving fund and resource that provides bail support for people to gain freedom while awaiting trial. Their process requires relatively simple paperwork and referral to be considered. People’s Bail Fund of Minnesota aims to get back to every referral within 1 business day.
At its core, cash bail criminalizes being poor. People who have enough money will always be able to pay bail and get released, while those who do not have extra income, families with wealth, or other resources are left to sit in jail as their cases move slowly through the system.
There are many collateral consequences that occur when people are held in jail before trial, people can lose:
There are also legal consequences to being held pre-trial. Studies show that, compared to people charged with similar crimes, those who are held pre-trial for any amount of time are more likely to be convicted, more likely to be sentenced to jail time, and more likely to be rearrested in the future.
People detained in jails pre-trial can also suffer serious mental and physical health consequences, fractured relationships with friends and family, and a loss of dignity and security.
This all happens before the person is ever found guilty.
Given that most people held in jail pre-trial are poor, these negative personal and legal consequences fall almost exclusively on poor people. In this way, cash bail creates two classes of people in our legal system: those who can bail out, and therefore have better case and life outcomes, and those who cannot bail out.
Bail is a complex system that can feel out of your control. However, there are actions that you can take to support pre-trial justice.
Below are some things you can do to support the movement for pre-trial justice in Minnesota and beyond.
Support local and national organizations advocating for change to cash bail and pre-trial detention systems.
To access a directory of other community-led bail and bond funds across the United States, please visit the National Bail Fund Network website.
If you cannot financially contribute to Bail Funds and other organizations fighting for pre-trial justice, there are still ways that you can be a part of the movement. Understanding the complexities of pre-trial fairness is an important step to dismantling oppressive systems like bail. Commit to reading one resource about the issue, and share what you learn with friends and family. Below are some suggested resources to get you started.
We hope that this information demystifies the process of cash bail and provides you with relevant resources and research to better understand this unjust system.
Cash bail disproportionately impacts Black, Latine, Indigenous, and low-income people. It’s an unjust and unconstitutional system that makes it a crime to be poor in Minnesota. Extensive research conducted across the United States makes it clear that pre-trial detention has detrimental effects on individuals, their families, and their communities.
