In less than a week, Donald Trump ally Tom Barrack was freed for $250m (€210m) and Nikola Corp founder Trevor Milton was released for $100m (€84m) – two of the highest US 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 are not a new phenomenon.
"The highest US bail is believed to be $3bn, 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.
“Junk bond king Michael Milken faced a quarter-billion dollar demand in 1989.
"Bernie Madoff’s bail was set at $10m 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.
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.
Mr Barrack spent three nights in jail as his bail package was negotiated – he was released after putting up his house, $5m in cash and units in DigitalBridge Group Inc.
Mr Milton secured his $100m bail with two properties valued at $40m. Mr 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.