(Bloomberg) — In less than a week, Trump ally Tom Barrack was freed for $250 million and Nikola Corp. founder Trevor Milton was released for $100 million — two of the highest U.S. bail amounts in recent years.
The bail amounts highlight a little understood part of the criminal justice system, where deals are often made behind closed doors, and what critics say is a system that traps the poor.
“The bonds required for Barrack and Milton are unusually high because both defendants are unusually wealthy,” Darryl Brown, a professor of law at the University of Virginia, wrote in an email. “The purpose of the bond is to ensure that the defendant returns to court and doesn’t flee the country. The bond amount has to be high enough that a defendant isn’t willing to walk away from it.”
While two back-to-back nine-figure bail packages are unusual, enormous bonds aren’t a new phenomenon. The highest U.S. bail is believed to be $3 billion, set in 2003 by a Texas judge for real estate heir Robert Durst, after he already jumped bail once. An appeals court later slashed the amount to $450,000. Galleon Group LLC’s Raj Rajaratnam was freed on $100 million bail in 2009 and junk bond king Michael Milken faced a quarter-billion dollar demand in 1989. Bernie Madoff’s bail was set at $10 million and he struggled to meet it, unable to find four people to co-sign for him.
“There’s this perception of white collar criminals that they’re all rich, taking their yachts out and stuff,” said Justin Paperny, a former investment banker at UBS Group AG who served 18 months in prison for securities fraud and now is a principal at White Collar Advice, a prison consultancy. “Often they have a little money, but they’ve lost jobs, business, income streams.”
In the federal system, a judge should theoretically only refuse to release a defendant before a trial if the person is a flight risk or poses a threat to the community. Trump Organization Chief Financial Officer Allen Weisselberg was released earlier this month without having to pay any bail, after being charged with tax-related crimes. Ghislaine Maxwell, on the other hand, has been denied bail multiple times as she awaits trial on sex-trafficking charges, even after her lawyers offered a package worth $28.5 million.
Defendants have two ways of getting bail set — their lawyers can strike a deal behind closed doors with the prosecutors, which would then need to be approved by a judge. Or if they can’t agree with the prosecutor on terms of release, it can be left up to the judge.
“It’s rare that the judge is just pulling a number out of a hat and saying, ‘Hey, pay $100,000, pay $250,000 bail.’ Rather, it’s usually coming as a proposal from the defendant and their lawyer, first to the prosecutor and then to the judge,” said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.
Before any detention hearing, every federal criminal defendant will meet with Pretrial Services. They will be interviewed about assets, liabilities, income and expenses. Defendants can use nearly any type of asset as security for the bond, or can ask a family member or close friend to put up their assets as a co-signer.
“As a general matter, the government looks for untainted assets for which bail forfeiture can most expeditiously be sought if necessary,” Daniel Richman, a former federal prosecutor and a law professor at Columbia University, wrote in an email. “It may also seek assets in the hands of third parties who can be counted on to exercise moral suasion or control over the defendant to ensure his appearance.”
Barrack spent three nights in jail as his bail package was negotiated — he was released after putting up his house, $5 million in cash and units in DigitalBridge Group Inc., the successor to his Colony Capital Inc. Barrack’s ex-wife, son and former business partner also chipped in their properties as security.
Milton secured his $100 million bail with two properties valued at $40 million. Milton may live in one of them, a 2,700-acre Utah ranch, as he awaits trial on charges that he misled investors about the company.
Both men have pleaded not guilty.
The vast majority of people who are arrested and charged can’t afford to purchase their release and sit in jail for no reason at profound human and economic costs even if the bond is set in the hundreds, or thousands of dollars, said Sandra Mayson, professor at the University of Pennsylvania Carey Law School. While wealthier clients can reclaim any cash forked over for bail, an indigent person is often paying a bail bondsmen for the money they need to get out of jail.
Such inequity has spurred a nationwide movement to ban cash bail.
The movement got a spur from California’s highest state court, which said in March that judges must weigh the defendant’s ability to pay.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” the judges said in a unanimous opinion, based on the case of a 66-year-old Black man in San Francisco who was charged with robbing a 79-year-old victim of $7 and a bottle of cologne. The bail for the defendant was initially set at $600,000, although a judge later reduced it to $350,000.
Even with a bondsman who would only charge 10% to post the full bail amount, a public defender in the case noted the defendant was too poor to make the reduced bail.
“Mr. Barrack’s high-profile case only underscores what the vast majority of people who experience the U.S. criminal legal system know all too well: there is one system of justice for the rich and another for the poor,” said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice.