Setting bail is one of the hardest decisions judges face


You have probably seen or read a news stories about someone arrested for a horrible crime and then heard that the judge set bail allowing that person to be released from custody.

Your second thought probably was, “What is with those crazy judges? Why would there be any bail set? Shouldn’t this person just sit in jail until trial?”

Some states have laws allowing an accused person, in certain circumstances, to be held in jail until trial with no chance of bailing out. Minnesota, like other states, requires judges to set bail in every case.

The Minnesota Constitution mandates that, “All persons shall before conviction be bailable by sufficient sureties, except for capital offenses . . .” Capital offenses are those where the death penalty could be imposed. Since Minnesota abolished the death penalty in 1911 we no longer have capital offenses. Accordingly, in 1958, our state Supreme Court decided that bail must be set in every case. That follows decisions in other states, with similar constitutions, affirming that bail is required no matter how “diabolical or atrocious” the charge.

In response, you might think, “Judges should set bail so high that the accused could never post it.” However, that would be illegal and improper. Judges are sworn to uphold the constitutions and laws of the United States and State of Minnesota. Both constitutions mandate that “excessive bail shall not be required.”

Judges are not to substitute their views of what the law should be for what the law is. To do so would violate the separation of powers and be an example of judicial activism.

A judge must follow the law regarding bail. Our law requires that bail must be set in an amount that is fair and reasonable given all of the facts of the case.

There are two primary factors that affect bail settings. First, whether the person is likely to voluntarily appear in court, and second, whether the person will likely constitute a danger to the public, or themselves, if released. Courts generally require higher bail settings for those with a history of missing court, those who seem likely to flee, and those, whom the court reasonably believes, if released, will be dangerous or commit other crimes.

In determining a fair and reasonable amount of bail judges consider numerous factors including the nature of the charge, the person’s criminal history, whether they have a job, own a home, have a family or if they have completed schooling. Experience shows us that those who are well invested in a community are lesser risks to flee, endanger others, or commit more crimes.

In the end, all any judge can do is to use their best judgment, experience and common sense. Even after considering all of the best information available, it is impossible to predict with any real certainty that defendants will later flee or turn out to be dangerous. This interplay between protecting society and respecting the right to bail makes these some of the hardest decisions that judges make.


   Judge Greg Galler is chambered in Washington County. If you have a general question about the law or courts for Judge Galler, send your question to the editor of this newspaper. Learn more about Judge Galler, or listen to a podcast of his columns at