Arrested? Told you need to pay $40 to be released? That is simply not true.

April 27, 2010 by Bradley Jardis
Filed under: Issues, Police

For eleven years I took part in a scam that turns the Eighth Amendment to the United States Constitution and Part I, Article 33 of the New Hampshire Constitution into a money making racket.

When you are arrested for a crime or offense which is punishable in the adult system, the police have generally three options regarding your release.

1) Release you on a hand summons. (A ticket, telling you when to appear in court.)
2) Release you without any charges.
3) Contact a “Bail Commissioner” who will decide what your bail will be.

The third option typically is what happens most and if you have been through it you are most likely $40+ poorer for the experience. The thing is this: you legally do not have to pay and they still need to release you. Any threat to not release you is just that. An empty threat. In fact, you would be quite lucky if they followed through with such a threat …

… as you would probably have an outstanding civil rights violation case.

Let me do a wee bit of explaining.

A “bail commissioner” is an appointed “judical officer” who serves underneath a district or superior court judge and who typically is supervised by the respective court clerk. These are the individuals who are called in the middle of the night to decide what the conditions of your release may be. They can decide to release you on personal recognizance or cash bail and may impose a list of conditions on your release. The catch is that in order for their decision to be legally binding you have to “agree” to them having jurisdiction over you in the first place. This agreement is when you sign the actual bail form and when you sign a white piece of paper agreeing to the services of a bail commissioner when they first arrive.

Although the law in New Hampshire does require that you pay for your Constitutional right of bail (and it could be argued that you are paying for the expedited service, which you are), a recent New Hampshire Supreme Court case makes clear that you have to be released by the bail commissioner even if you don’t pay.

The NH Supreme Court says:

… we impose the following safeguards to avoid that appearance. The bail commissioner must inform arrestees of the date they could come before the court if they choose not to have bail set. The bail commissioner must also hold a bail hearing whether the fee is paid or not, and must inform arrestees that a hearing will be held regardless of whether the fee is paid. The bail commissioner must also inform arrestees that if they cannot pay the fee at the time of setting bail, then the fee may be paid over time or it will be waived for indigency.

I have known many bail commissioners during my tenure in law enforcement and many are good people looking to help augment their living by making a few extra dollars. I have no problem with this. The problem I do have is that it is not known by many people that they are constitutionally entitled to these services without having to pay and that they are usually led to believe the exact opposite.

In the past I have been guilty of leading people to believe this so that the bail commissioner would be paid their fee……… and it is just not true.

http://georgedonnelly.com George Donnelly

Kudos for speaking the truth. Good job.
http://soundclick.com/thinkliberty thinkliberty

I learned something new.
Bangor

Awesome advise!

So, who are these bail commissioner people anyway? Judges? Retired city cops or state troopers? We really don't need to pay these state agents anymore? Let's not pay!
Highline

A large marjority of them are retired law enforcement officers.

The NH Constitution ALSO says (in Part I, article 14):

"[e]very subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws."

—> "Freely" <—

Why should you pay? It is your constitutional right.
Lance

Nice post, Highline.

I think it is interesting that Keene prosecutor Chris McLaughlin was the prevailing attorney in that Supreme Court case.
http://newhampshirefreepress.com Kat Kanning

So what are the magic words you need to say to get them to release you w/o paying the bail commissioner?

Highline

Kat,

I would simply say that you would like the services of the bail commissioner and that you'd adhere to your right to obtain justice freely.

I don't consider the words magical…. But when you still have your $40, you might

Lpviper

Aren't the magic words in a Rage Against the Machine song somewhere?
o

If anybody has ever listened or read the white form requesting the services of the bail commissioner, it is mentioned that if you can not pay the 40 dollar fee you will be given an opportunity to pay the fee at a later date and still be released.
Highline

O,

That is correct. However, even after the supreme court decree I've seen bail commissioners not always use that white form (as not all court clerks are seeming to demand it).
http://mike.barskey.net Mike Barskey

@Brad: I look forward to when you get arrested and try this, so we can learn whether those magic words work.

Clarification: I do *not* look forward to your being arrested. I was being sarcastic to make a point: you've explained what the system says should happen and what we should do to avoid the system (well, to at least avoid paying $40), but you're coming from an in-the-system perspective. Please let me know once you've been on the other side of that system and tried demanding bail services without paying. Also, anyone else: please let me know once you've tried these magic words to avoid paying $40 to get bail commissioner services and what the result was.

My guess is that, at the very best, they *will* give you bail commissioner service for free, but the bail commissioner will decide that you are not to be released or that your bail is ridiculously high or something like that. I hope I'm wrong.
Sam A. Robrin

"You're under arrest."

"What's the charge?"

"Forty dollars."
Neil

Randy Kelton on rule of law radio is a great resource to make sure your courts and judges are following the rules and proceedure correctly.
http://mike.barskey.net Mike Barskey

I stand corrected! Probably.

I just heard the Porc411 that Mike Tiner has bailed out of jail and did so without paying the $40 bail commissioner fee (and Brian Travis said he was going to try the method Brad mentioned in this article).

I don't know the details of what happened, but I will assume that he did what Brad said and it worked. It's still anecdotal, but hell, so is the success of the 420 celebrations in Keene.

So I was wrong. Probably.
Dick

I know someone that just went through the arrest process. The officers said in no uncertain terms that he would have to spend the night in jail if he did not pay the bail commissioner the $40 fee. Plus, not paying this fee would only bias the entire court house against you. I know that's not the way it's supposed to work, but this is real life. People talk and judges certainly don't like people to assert themselves in that manner.
Lance

I'm not supporting this practice of employing bail commissioners to provide these "optional" hearings at the expense of defendants, but I do want to note that the practice appears to be lawful according to the NH Supreme Court.

I just re-read the Follansbee opinion and the way I see it is that the arrested person can choose to have the bail hearing whether or not the fee is paid immediately, but if the person chooses to have the hearing and *isn't* indigent, the bail commissioner can try to collect the fee at a later date. The Supreme Court said the fee "may be paid over time or it will be waived for indigency." They probably should have used the phrase "will be paid over time" because I'm sure that is what they mean to see happen. I'm sure the bail commissioners think that their fees are collectible debts. I'm not sure practically how it would work if a bail commissioner wanted to try to collect the fee "over time" but Follansbee seems to allow bail commissioners to refuse to provide a bail hearing if a person won't agree to pay the fee at a later date.
Lpviper

How does the bail commissioner 'provide' a bail hearing? Whose resources are used to do so? If the answer is 'his resources', then I would say he has a claim for payment. If the answer is 'the courtroom, the courthouse, or any other 'public' property, then the man is a criminal and I don't care what the piece of paper says, not to mention that we are supposed to have a right to due process, which the court decision and the NH rule seem to violate.

I wouldn't give this guy a dime
Bradley Jardis

Lance,

What you are saying is technically correct.

I've seen bench warrants issued by the Plymouth District Court for $40 cash to pay the bail commissioner's fee. What happens if you go to court and refuse to pay it? It has appeared to me to be calculated as an outstanding fine and will it be removed at the $50/day rate or will you be held in civil contempt until you pay?

My real issue with this process, as evidenced by Curtis' recent experience, is that arrestees are threatened with incarceration and detention pending initial arraignment if the fee isn't paid.

I'm sure somewhere down the line the state/bail commissioner/courts can argue that you are required to pay… and you can simply remind them that justice needs to be "free" and that if someone has an advantage (freedom) over you for money… it ain't free any longer.

Hampton PD's bail commissioner (I've heard) makes around $40,000 a year from bailing people. $$$$$$$$$$$$$$$$$$$$$$$$$$$$$ How many of them do you think were misled into thinking that the only way they can have their constitutional right to bail is if they pay for it BEFOREhand?
Mike Tiner

Wanted to add something here since this post was recently brought up.

When the bail commissioner showed up for my release, the p.r. bail had already been set for me by the district court judge.