Out of the blue – someone you love has been arrested and is in jail. What should you do? What do you need to know? Here is a handy guide with ten tips on how to get your loved one out of jail and other essential information.
He or she is in jail. That means their ability to act on their own behalf is severely limited – at least until they get out. Keep these things in mind:
- Regain emotional balance. Being arrested and jailed is just about always a huge shock, and an unwelcome one at that. This may be even more true for loved ones, who may feel a flood of conflicting emotions from anger to sadness to a sense of powerlessness. But there are things you can do to help. Gaining knowledge and asserting some control will help you (and your loved one) regain your emotional balance; and your ability to begin problem-solving.
- Phone calls from jail. It is vital to understand that phone calls from jail are recorded and generally provided to police investigators and prosecutors. The last thing a criminal defense lawyer like Thomas Gallagher wants to see is one or more sets of discs labeled “jail calls” provided by the prosecutor as pretrial discovery in one of his cases. As a result, learn and apply this rule: “Avoid talking about the incident or alleged offense that led to arrest or criminal charges over the phone when one party is in jail.” Of course you’re curious. Of course they may want to tell. But don’t ask about it until they are out. And don’t let them tell you or talk about it on the phone! This is even more important when the person is actually innocent, since words can be and often are twisted to help convict the innocent.
- Big picture vs. immediate problem. The most important thing in the long run will be how the criminal case turns out in the end, the outcome. Nothing should be done to jeopardize that in any way (for example, jail phone calls). In the short run, however, it’s important to get the accused person out of jail quickly if at all possible. Why? Having a job not only provides needed income, it also helps reassure that the accused is less likely to break the law in the future. But most importantly, when people are held in jail waiting trial they generally become demoralized and are more likely to plead guilty – even when they are innocent.
- Minnesota criminal defense lawyer. Consulting a criminal defense lawyer is a good idea. We can help with everything discussed here, and then some. When someone has been recently arrested we (criminal defense lawyers) should help educate loved ones supporting the accused and the accused about the big picture solutions as well as solving the immediate problem of getting out on a pre-trial basis. Start with a phone call. A jail visit may follow.
- Bail bond company. When someone has recently been arrested and may have a pretrial release hearing coming up, a good bail bond company can provide helpful services, well beyond simply posting a bail bond with the court. The criminal defense lawyer should be able to recommend one.
- Arrest without an arrest warrant. Many people in jail were arrested without an arrest warrant. (An arrest warrant would include a preliminary finding of “arrest probable cause” by a judge.) In Minnesota we have the so-called 36 hour and 48 hour rules limiting how long a person can be detained (in jail) without a judicial finding of arrest probable cause. Due to rules about which days count towards those limits, you may not need to know right now the specifics of how those rules are applied. What you really want to know is “how long can they hold my loved one without filing a criminal charge with the court; and without a pre-trial release (bail) hearing before a judge?” The easiest way to find out is to ask the jail: “what is the deadline for releasing him or her if charges haven’t been filed?” The Deputy at the jail will normally tell you, “noon,” of such-and-such day of the week. To go beyond that call Thomas Gallagher or another Minnesota criminal defense lawyer.
- Arrest with an arrest warrant. Minnesota Rules of criminal Procedure, Rule 3.02, Subd. 2. “Directions of Warrant. The warrant must direct that the defendant be brought promptly before the court that issued the warrant if the court is in session.If the court specified is not in session, the warrant must direct that the defendant be brought before the court without unnecessary delay, and not later than 36 hours after the arrest, exclusive of the day of arrest, or as soon as a judge is available.” See also, Rule 4.01.
- Right to Pretrial Release. The Minnesota Constitution includes two clauses guaranteeing the right to bail. The first says “excessive bail shall not be required.” Minn. Const. Article 1, § 5, similar to the United States Constitutional protection against excessive bail. The Minnesota Constitution, however, also provides: “All persons before conviction shall be bailable by sufficient sureties, except for capital offenses.” Minn. Const. Article l, § 7. Under Section 7, all persons are entitled to bail except those charged with capital offenses. Because Minnesota no longer has the death penalty, all defendants have the right to have bail set, to pretrial release.
- Pretrial release hearing. A judge determines the conditions of release. Conditions, including bail, are meant to assure a person’s appearance at future court proceedings. Court rules tell judges to release individuals without conditions unless a judge determines that such a release “will endanger the public safety or will not reasonably assure the defendant’s appearance.” Though there is no maximum bail for felonies, the maximum bail for non-felonies is four times the maximum fine ($12,000 for a Gross Misdemeanor; $3,000 for a Misdemeanor). The defendant has the right to unconditional bail. Most judges will set two bail amounts, one with and one without conditions (sometimes zero with conditions). If a judge does not set an unconditional bail amount, the defense attorney should immediately request that the judge do so. The defendant will need to choose one of the two options, and will not be able to change his or her mind later unless a judge allows that. It is possible for a person in jail presented to a judge to request that the court postpone consideration of pretrial release issues. Sometimes this is a good idea, but we can leave this as a point for discussion with the defense attorney beforehand.
- Remedies. What if these rights are violated by the jail, the police, the prosecution, or the court? What remedies are available? One type of remedy is designed to force a hearing or immediate release if an immediate hearing is denied. A Petition for a Writ of Habeas Corpus, a type of equitable remedy, asks a judge to Order immediate release of a person being illegally detained. Another approach is for the defense attorney to contact court officials to request and demand that a prompt hearing be scheduled. If the police get a confession from an illegally detained person, the defense lawyer can ask the Judge to suppress the confession as illegal, coerced and unreliable. In cases where bail has been set but the amount is beyond the reach of the defendant, Thomas Gallagher has made multiple motions for a speedy trial, or immediate release pending trial in the alternative, with some success.
For more information about pretrial release and bail: Do you have more questions about how to get your loved one out of jail, or need to find a good criminal defense lawyer for him or her?
You can call Minneapolis Criminal Lawyer Thomas Gallagher to discuss. He can help you.