The Eight Amendment to the United States Constitution and Article 1, Section 16 of the Michigan Constitution provide that excessive bail shall not be required. US Const, Am VIII; MI Const 1963, Art 1, §16.

Bail that is set at an amount higher than reasonable calculated to give adequate assurance that the accused will stand trial and submit to sentence if guilty is excessive under the Eight Amendment. Stack v Boyle, 342 U.S. 1, 5 (1951)

Generally, a Michigan court must set bond for release prior to trial, except in cases where the defendant is charged with murder or certain violent or criminal sexual conduct offenses.

There are various factor which the court can consider in setting bond.  Primarily, the court must ensure that the defendant will likely appear for further proceedings and not be a risk to the community if released.

Additionally, if pre-trial release is approved, then the court has broad discretion to impose various requirements.

The complete rule is stated below.  If you have a criminal matter in Northern or Central Michigan, then please contact Nye & Associates, PLLC for a free consultation.

Michigan Court Rule 6.106 (MCR 6.106 — Pre-Trial Release)

(A) In General. At the defendant’s first appearance before a court, unless an order in accordance with this rule was issued beforehand, the court must order that, pending trial, the defendant be

(1) held in custody as provided in subrule (B);

(2) released on personal recognizance or an unsecured appearance bond; or

(3) released conditionally, with or without money bail (ten percent, cash or surety).

(B) Pretrial Release/Custody Order Under Const 1963, art 1, § 15.

(1) The court may deny pretrial release to

(a) a defendant charged with

(i) murder or treason, or

(ii) committing a violent felony and

[A] at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony,  or

[B] during the 15 years preceding the commission of the violent felony,  the defendant had been convicted of 2 or more violent felonies under the  of this state or substantially similar laws of the United States or  another state arising out of separate incidents, if the court finds that proof of the defendant’s guilt is evident or the presumption great;

(b) a defendant charged with criminal sexual conduct in the first degree, armed robbery,  or kidnapping with the intent to extort money or other valuable thing thereby, if the court  finds that proof of the defendant’s guilt is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or  present a danger to any other person.

(2) A “violent felony” within the meaning of subrule (B)(1) is a felony, an element of   which involves a violent act or threat of a violent act against any other person..

(3) If the court determines as provided in subrule (B)(1) that the defendant may not be  released, the court must order the defendant held in custody for a period not to exceed 90  days after the date of the order, excluding delays attributable to the defense, within which  trial must begin or the court must immediately schedule a hearing and set the amount of  bail.

(4) The court must state the reasons for an order of custody on the record and on a form approved by the State Court Administrator’s Office entitled “Custody Order.” The completed form must be placed in the court file.

(C) Release on Personal Recognizance. If   the defendant is not ordered held in custody pursuant to subrule (B), the court must order the pretrial release of the defendant on personal recognizance, or on an unsecured appearance bond, subject to the conditions that the defendant will appear as required, will not leave the state without permission of the court, and will not commit any crime while released, unless the court determines that such release will not reasonably ensure the  ppearance of the defendant as required or that such release will present a danger to the public.

(D) Conditional Release. If the court determines that the release described in subrule (C) will not reasonably ensure the appearance of the defendant as required, or will not reasonably ensure the safety of the public, the court may order the pretrial release of the defendant on the condition or combination of conditions that the court determines are appropriate including

(1) that the defendant will appear as required, will not leave the state without permission of  the court, and will not commit any crime while released, and,

(2) subject to any condition or conditions the court determines are reasonably necessary to  ensure the appearance of the defendant as required and the safety of the public, which may  include requiring the defendant to

(a) make reports to a court agency as are specified by the court or the agency;

(b) not use alcohol or illicitly use any controlled substance;

(c) participate in a substance abuse testing or monitoring program;

(d) participate in a specified treatment program for any physical or mental condition,  including substance abuse;

(e) comply with restrictions on personal associations, place of residence, place of  employment, or travel;

(f) surrender driver’s license or passport;

(g) comply with a specified curfew;

(h) continue to seek employment;

(i) continue or begin an educational program;

(j) remain in the custody of a responsible member of the community who agrees to  monitor the defendant and report any violation of any release condition to the court;.

(k) not possess a firearm or other dangerous weapon;

(l) not enter specified premises or areas and not assault, beat, molest, or wound a named  person or persons;

(m) comply with any condition limiting or prohibiting contact with any other named person or persons. If an order under this paragraph limiting or prohibiting contact with     any other named person or persons is in conflict with another court order, the most restrictive provision of each order shall take precedence over the other court order until  the conflict is resolved.

(n) satisfy any injunctive order made a condition of release; or.

(o) comply with any other condition, including the requirement of money bail as described in subrule (E), reasonably necessary to ensure the defendant’s appearance as required and the safety of the public.

(E) Money Bail. If the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot otherwise be assured, money bail, with or without conditions described in subrule (D), may be required.

(1) The court may require the defendant to

(a) post, at the defendant’s option,

(i) a surety bond that is executed by a surety approved by the court in an  amount equal to 1/4 of the full bail amount, or.

(ii) bail that is executed by the defendant, or by another who is not a  surety approved by the court, and secured by

[A] a cash deposit, or its equivalent, for the full bail amount, or.

[B] a cash deposit of 10 percent of the full bail amount, or, with  the court’s consent,

[C] designated real property; or

(b) post, at the defendant’s option,

(i) a surety bond that is executed by a surety approved by the court in an  amount equal to the full bail amount, or

(ii) bail that is executed by the defendant, or by another who is not a surety approved by the court, and secured by

[A] a cash deposit, or its equivalent, for the full bail amount, or, with the court’s consent,

[B] designated real property.

(2) The court may require satisfactory proof of value and interest in property if the court consents to the posting of a bond secured by designated real property.

(F) Decision; Statement of Reasons.

(1) In deciding which release to use and what terms and conditions to impose, the court   is to consider relevant information, including

(a) defendant’s prior criminal record, including juvenile offenses;.

(b) defendant’s record of appearance or nonappearance at court proceedings or flight to avoid prosecution;.

(c) defendant’s history of substance abuse or addiction;.

(d) defendant’s mental condition, including character and reputation for  dangerousness;.

(e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence;.

(f) defendant’s employment status and history and financial history insofar as  these factors relate to the ability to post money bail;.

(g) the availability of responsible members of the community who would vouch  for or monitor the defendant;.

(h) facts indicating the defendant’s ties to the community, including family ties and relationships, and length of residence, and.

(i) any other facts bearing on the risk of nonappearance or danger to the public..

(2) If the court orders the defendant held in custody pursuant to subrule (B) or released  on conditions in subrule (D) that include money bail, the court must state the reasons for  its decision on the record. The court need not make a finding on each of the enumerated  factors.

(3) Nothing in subrules (C) through (F) may be construed to sanction pretrial detention  nor to sanction the determination of pretrial release on the basis of race, religion, gender,  economic status, or other impermissible criteria.

(G) Custody Hearing.

(1) Entitlement to Hearing. A court having jurisdiction of a defendant may conduct a   custody hearing if the defendant is being held in custody pursuant to subrule (B) and a custody hearing is requested by either the defendant or the prosecutor. The purpose of the hearing is to permit the parties to litigate all of the issues relevant to challenging or             supporting a custody decision pursuant to subrule (B).

(2) Hearing Procedure.

(a) At the custody hearing, the defendant is entitled to be present and to be represented by a lawyer, and the defendant and the prosecutor are entitled to present witnesses and evidence, to proffer information, and to cross-examine each other’s witnesses.

(b) The rules of evidence, except those pertaining to privilege, are not applicable.  Unless the court makes the findings required to enter an order under subrule  (B)(1), the defendant must be ordered released under subrule (C) or (D). A  verbatim record of the hearing must be made.

(H) Appeals; Modification of Release Decision.

(1) Appeals. A party seeking review of a release decision may file a motion in the court having appellate jurisdiction over the court that made the release decision. There is no fee for filing the motion. The reviewing court may not stay, vacate, modify, or reverse the  release decision except on finding an abuse of discretion.

(2) Modification of Release Decision.

(a) Prior to Arraignment on the Information. Prior to the defendant’s arraignment on the information, any court before which proceedings against the defendant are  pending may, on the motion of a party or its own initiative and on finding that there is a substantial reason for doing so, modify a prior release decision or reopen a prior custody hearing.

(b) Arraignment on Information and Afterwards. At the defendant’s arraignment  on the information and afterwards, the court having jurisdiction of the defendant  may, on the motion of a party or its own initiative, make a de novo determination  and modify a prior release decision or reopen a prior custody hearing.

(c) Burden of Going Forward. The party seeking modification of a release  decision has the burden of going forward.

(3) Emergency Release. If a defendant being held in pretrial custody under this rule is ordered released from custody as a result of a court order or law requiring the release of  prisoners to relieve jail conditions, the court ordering the defendant’s release may, if appropriate, impose conditions of release in accordance with this rule to ensure the  appearance of the defendant as required and to protect the public. If such conditions of release are imposed, the court must inform the defendant of the conditions on the record or by furnishing to the defendant or the defendant’s lawyer a copy of the release order setting forth the conditions.

(I) Termination of Release Order.

(1) If the conditions of the release order are met and the defendant is discharged from all obligations in the case, the court must vacate the release order, discharge anyone who has posted bail or bond, and return the cash (or its equivalent) posted in the full amount of the     bail, or, if there has been a deposit of 10 percent of the full bail amount, return 90 percent of the deposited money and retain 10 percent.

(2) If the defendant has failed to comply with the conditions of release, the court may    issue a warrant for the arrest of the defendant and enter an order revoking the release   order and declaring the bail money deposited or the surety bond, if any, forfeited.

(a) The court must mail notice of any revocation order immediately to the defendant at the defendant’s last known address and, if forfeiture of bail or bond  has been ordered, to anyone who posted bail or bond.

(b) If the defendant does not appear and surrender to the court within 28 days after the revocation date, the court may continue the revocation order and enter  judgment for the state or local unit of government against the defendant and anyone who posted bail or bond for an amount not to exceed the full amount of the bail, and costs of the court proceedings, or if a surety bond was posted, an amount not to exceed the full amount of the surety bond. If the amount of a forfeited surety bond is less than the full amount of the bail, the defendant shall  continue to be liable to the court for the difference, unless otherwise ordered by the court. If the defendant does not within that period satisfy the court that there  was compliance with the conditions of release other than appearance or that compliance was impossible through no fault of the defendant, the court may  continue the revocation order and enter judgment for the state or local unit of government against the defendant alone for an amount not to exceed the full amount of the bond, and costs of the court proceedings.

(c) The 10 percent bail deposit made under subrule (E)(1)(a)(ii)[B] must be applied to the costs and, if any remains, to the balance of the judgment. The amount applied to the judgment must be transferred to the county treasury for a circuit court case, to the treasuries of the governments contributing to the district control unit for a district court case, or to the treasury of the appropriate municipal government for a municipal court case. The balance of the judgment may be enforced and collected as a judgment entered in a civil case.

(3) If money was deposited on a bail or bond executed by the defendant, the money must be first applied to the amount of any fine, costs, or statutory assessments imposed and  any balance returned, subject to subrule (I)(1).