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.
Strike a Deal
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.
‘Moral Suasion’
“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.”