What Bond and Bail Mean in a Michigan Criminal Case

You heard "bond" at your first court date

If you were just arrested in Kent, Ottawa or a nearby county, the first hearing probably ended with a judge or magistrate saying a number and the word "bond." Then the jail, friends and television all say "bail." The two words point at the same thing.

Bail is the older word for the promise, and sometimes the money, that lets a person stay out of jail while the case is pending. Michigan statutes and court rules mostly say "bond" or "pretrial release," and the Michigan Constitution says "bail." In everyday West Michigan courtroom talk, "bond" covers all of it.

This page is general information about Michigan law, not advice about your case. The site's post on how bail works gives the big picture, and the sibling guide on Michigan bond types compares cash, surety and 10% deposit bonds. Talk to a lawyer about the bond in your own case.

Most people have a right to bail before conviction

Article 1, section 15 of the Michigan Constitution says that all persons shall, before conviction, be bailable by sufficient sureties, except in a short list of situations. Those exceptions cover murder and treason, first-degree criminal sexual conduct, armed robbery, kidnapping to extort, and certain violent felonies charged against a person with a listed violent-felony record or who was on bail, probation or parole for one. Even then, bail may be denied only when the proof is evident or the presumption great.

For everyone else, the question is not whether you can be released but on what terms. MCR 6.106(A) tells the court at arraignment to do one of three things: keep the defendant in custody where the rule allows it, release on personal recognizance or an unsecured bond, or release on conditions, with or without money.

The starting point is release on your promise

MCR 6.106(C) sets the default. Unless the court orders custody, it must release the defendant on personal recognizance or an unsecured appearance bond, on three conditions: appear as required, do not leave the state without the court's permission, and do not commit any crime while released. The court may depart from that only if it determines that such release will not reasonably ensure your appearance or will present a danger to the public.

If the court makes that finding, MCR 6.106(D) lets it add conditions, and MCR 6.106(E) lets it require money bail, but only for reasons it states on the record. How often judges set money bail varies from court to court and judge to judge.

MCR 6.106(F)(1) lists what the judge is to consider:

• Your prior criminal record, including juvenile offenses, and your record of showing up for court or missing it.
• Any history of substance abuse or addiction, and your mental condition, including character and reputation for dangerousness.
• The seriousness of the charge, whether threats were made, and the probability of conviction and likely sentence.
• Your employment and financial history as they bear on posting money bail.
• Whether responsible community members would vouch for or monitor you, and your ties to the community: family, work, how long you have lived here.
• Any other facts bearing on the risk of nonappearance or danger to the public. The court must state its reasons on the record (MCR 6.106(F)(2)).

Conditions a judge can attach

The conditions in MCR 6.106(D)(2) read like a menu. A court can order reporting to a court agency, no alcohol or illegal drug use, testing or monitoring, a treatment program, a curfew, surrender of a driver's license or passport, no firearms or other dangerous weapons, staying away from named places, and no contact with a named person. The list ends with any other condition the court finds reasonably necessary.

A second source of conditions is MCL 765.6b. When a judge or district court magistrate releases a defendant on conditions meant to protect one or more named persons, the court must state the specific conditions on the record or in a writing handed to you, and the order goes into LEIN, the statewide police database (MCL 765.6b(1), (4)). The order may bar you from buying or possessing a firearm, and in a case involving domestic violence or another assaultive crime the court may order an electronic monitoring device, which most people call a tether (MCL 765.6b(3), (6)).

The pillar guides go deeper on how these conditions work in domestic violence cases and in OWI cases.

Interim bond: release before you see a judge

For many misdemeanors, you may never wait for a judge to set bond. Under MCL 780.581, a person arrested without a warrant for a misdemeanor or local ordinance violation punishable by up to 1 year may post an interim bond with the arresting officer, that officer's supervisor, or the jail if a magistrate is not available. You get a receipt. MCL 780.582 extends this to misdemeanor arrests made on a warrant.

The same statute lets police hold a person who appears to be under the influence of alcohol or drugs until that person is in proper condition to be released, or until the next court session (MCL 780.581(3)).

Domestic assault is different. MCL 780.582a says a person arrested for domestic assault under MCL 750.81 or 750.81a against a spouse, former spouse, dating partner, co-parent or household member may not be released on interim bond or personal recognizance. That person is held until arraignment or until a judge or magistrate sets bond, and the court may order no contact of any kind with the victim (MCL 780.582a(1), (2)).

Missing court, breaking a condition, and getting money back

If you miss a court date or violate a condition, MCR 6.106(I)(2) lets the court issue an arrest warrant, revoke the release order, and declare any bail money or surety bond forfeited. The court mails notice of the revocation, and if you do not appear and surrender within 28 days, it can enter judgment for the forfeited amount. A surety, such as a bail bondsman, gets its own notice and a chance to show cause before judgment (MCL 765.28(1)).

When the case ends and you have met every condition, MCR 6.106(I)(1) requires the court to return cash posted in the full amount. For a 10% deposit bond, the court returns 90 percent of the deposit and keeps 10 percent as costs, or returns the whole deposit if you were not convicted of the charged crime (MCR 6.106(I)(1); MCL 780.66). Money you deposited yourself is first applied to any fine, costs or assessments (MCR 6.106(I)(3)). A fee paid to a bail bondsman is the bondsman's charge for posting the bond, not money held by the court, so the court does not return it.

Bond is not fixed forever. Before arraignment on the information, a court may modify a release decision on a party's motion or on its own for a substantial reason; after that it may decide the question fresh (MCR 6.106(H)(2)). A motion to review bond is how a lawyer asks for a lower amount or different conditions.

What to do next

Keep every paper from the jail and the courtroom: the release order, the bond receipt and the notice of your next date. Read the conditions twice. If a no-contact order is part of your bond, follow it even if the other person reaches out first, because the order binds you, not them.

A lawyer matters most for your own case when the bond is more than you can post, when a condition makes work or child care impossible, or when the charge is one where bail can be denied. A lawyer can file a motion to review bond under MCR 6.106(H) and explain how your particular court handles it. If you cannot afford a lawyer, ask the court for an appointed one at arraignment; see the guide on retained and court-appointed lawyers.

The office of Attorney Shawn Haff handles criminal defense in Michigan state courts across Kent, Ottawa, Allegan and Barry counties, and offers a free consultation at 616-438-6719, answered 24 hours a day.