Bail and Bail Bond Agents

Sections within this essay:

Background

Bail is an amount of money that a criminal defendant may be ordered to pay before being released from custody pending trial. Its purpose is to ensure a defendant's return at subsequent trial proceedings. Bail is typically determined during a defendant's first appearance in court. A judge or other court officer sets the amount and conditions of bail. At a bail hearing, a judge has three options:

• Release the defendant on his or her own recognizance or upon an unsecured appearance bond
• Deny bail to the accused
• Set terms of bail, including the amount of bail and any special conditions for release

In common usage, bail typically refers to criminal proceedings. However, in rare instances bail may be imposed in civil cases. Civil bail is used to directly or indirectly secure payment of a debt or to secure a performance of a civil duty. For example, bail may be employed in a civil case to arrest someone to prevent them from fleeing to avoid litigation, or it may be used to prevent an unlawful concealment or disposal of assets. The amount of bail set will be based on the probable amount of damages the plaintiff could collect. Sometimes the deposit may be used to pay the judgment to a plaintiff.

Bail law came to the U.S. through English tradition and laws. Even before the adoption of the U.S. Constitution and Bill of Rights, a judiciary act in 1789 guaranteed a right to bail in all noncapital cases. For a person charged with a capital offense (where death is a possible punishment), bail was discretionary, depending upon the seriousness of the offense. The Eighth Amendment to the U.S. Constitution provides, "excessive bail shall not be required." The U.S. Supreme Court has ruled that the constitution permits holding a defendant without bail pending a criminal trial. No absolute right to bail exists.

Bail is not meant to act as pre-trial punishment, or as a fine. Modern bail laws reflect an intentional emphasis on non-monetary methods to ensure a defendant's appearance at trial. This is meant to avoid discrimination against poor defendants.

Bail may or may not be required in misdemeanor cases, depending upon the circumstances and seriousness of the offense. More serious misdemeanor cases and felonies often require a bail determination. Bail may come into play at three stages of a criminal proceeding:

• During the pretrial period
• Pending imposition or execution of sentence

• Pending appeal of a conviction or sentence

If bail is not required, a defendant may be released on his or her own recognizance. Releasing someone on personal recognizance means that the person has promised to show up for trial or other court proceedings, without posting a bond. Release on personal recognizance may be appropriate when a person has ties to the community and has lawful and steady employment. Family status is also taken into account. Before release, a defendant must sign a document promising to appear. Failure to abide by the terms of release on personal recognizance may result in revocation of the privilege, or further criminal charges, including immediate arrest. A defendant released on personal recognizance may be required to abide by certain rules. For example, the defendant may be forbidden from traveling outside of the court's jurisdiction, or may be forbidden from contacting the victim or the victim's family.

A court may also impose an unsecured appearance bond on a criminal defendant. A bond amount is set, but the defendant is not required to post any money. If the defendant fails to appear at subsequent proceedings, or violates any terms of the bond, he or she will be required to pay the full amount of the bond.

According to the Department of Justice's Bureau of Justice statistics, for all defendants charged with state felonies in May 2000 in the 75 most populous counties in the country:

• 62 percent were released prior to the disposition of their case
• 38 percent were detained, including 7 percent who were denied bail
• Of those released, 26 percent were released on their own recognizance
• 37 percent were released on a commercial surety bond
• About a third of those released failed to appear for a scheduled appearance, were rear-rested for a new offense, or committed a violation that resulted in revocation of the pretrial release

The Bail Reform Act of 1984

The Bail Reform Act of 1984, found in Title 18 of the United States Code, replaced the Bail Reform Act of 1964. The 1964 act did not allow judges in non-capital cases to consider the danger a defendant posed to the community. In some cases, this resulted in defendants who committed further violent crimes after being released on personal recognizance. The 1984 law closed this loophole, and allowed for detention where necessary for the safety of the community. In addition to the federal statutes governing bail in federal criminal cases, every state has its own bail laws.

Pursuant to federal statute, a detention hearing is required in cases involving violence, including any offense where the maximum sentence is life imprisonment or death, or for certain drug offenses where a maximum sentence of ten years or more is prescribed. Moreover, a hearing is required for certain defendants who have multiple convictions. A hearing will also be held if it appears to involve a serious risk that the defendant will flee, or where it appears that the defendant will obstruct or attempt to obstruct justice or tamper with prospective witnesses or jurors. The detention hearing must be held promptly, preferably at the time of the defendant's first appearance in court. If bail is denied, the court must issue a written order with findings of fact and a statement of the reasons for the detention.

Detention Hearing Procedures

To determine what is necessary to ensure a defendant's appearance at trial, a judge or magistrate examines the nature and circumstances of the charges, with particular attention to whether the offense involves violence or narcotic drugs. The court may inquire into the nature and value of any property that might be offered as collateral. The court also examines the weight of the evidence against the defendant, whether the person was on parole or probation at the time of the present arrest, the nature and seriousness of danger to others in the community, and evidence of the defendant's character. When examining the history and character of a person, the court may look at:

• Physical and mental condition
• Financial resources
• Family ties
• History relating to drug and alcohol abuse
• Criminal history
• Record concerning appearance at court proceedings
• Length of residence in the community

Where a defendant poses a threat to the safety of the community, he or she may be held without bail. In other situations, federal law typically requires that a defendant in a federal criminal case be released on personal recognizance or upon execution of an unsecured appearance bond. Released defendants must not commit any crimes during the period of release. However, if a court determines that personal recognizance or an unsecured appearance bond will not reasonably assure the defendant's appearance, or determines that the safety of a person or the community is endangered, a defendant may be released upon conditions. Federal law delineates a number of conditions that may be imposed. Defendants may be required to:

• Limit travel
• Maintain or seek employment
• Undergo drug and alcohol testing
• Undergo medical, psychiatric, or psychological treatment
• Maintain or commence an educational program
• Comply with a curfew
• Refrain from excessive use of alcohol or any use of narcotic drugs
• Remain in the custody of a designated person
• Comply with periodic check-ins with authorities
• Refrain from possession of a firearm
• Refrain from contact with crime victim or others designated by the court
• Execute a bond agreement with the court or a solvent surety in an amount as is reasonably necessary to ensure the defendant's appearance
• Agree to other reasonable conditions the court may impose to ensure a defendant's appearance

Both the defendant and the government may appeal an adverse bail decision. The scope of review is limited, however. The only question for an appellate court is whether the trial court abused its discretion.

Material Witnesses, Bonds on Appeal or Pending Sentencing

In rare instances, persons not charged with a crime may be detained, or ordered to post bond. A material witness is subject to arrest and federal release and detention laws it is shown that a subpoena is not sufficient to secure the person's presence in court.

A defendant who was released prior to trial on his or her own recognizance may, if convicted, be required to post a bond during the appeal process or pending sentencing. A court may also determine detention is required. Release is generally appropriate in cases where no sentence of imprisonment is likely, if acquittal or a motion for a new trial is likely, or where the court finds by clear and convincing evidence that a person is not likely to flee or pose a danger.

Posting Bail

Once a court has set the amount of bail, that amount, or a specified percentage, is paid to the court. Payment may be made in cash or in an approved cash substitute, such as a money order or cashier's check. A defendant may post his or her own bail, or may find another person to do so. Once bail has been posted, whether by the defendant or someone else, the court will issue a document or a court order that shows the defendant may be released.

If another person posts bond on the behalf of a defendant, the bail bond becomes a three-party contract between the defendant, the court, and the surety. The surety is the party who, at the request of a defendant, becomes responsible for securing the defendant's appearance in court. People who may act as a surety for a criminal bond include licensed bond agents and friends and relatives of the defendant. As part of the contract, the defendant promises to appear at future proceedings. The surety promises to forfeit to the court the amount of the bond if the defendant fails to appear as required.

The penalty for failure to appear as required after release is a fine, imprisonment, or both. Federal law provides that any term of imprisonment for failure to appear must run consecutively to any other criminal sentence. However, if uncontrollable circumstances caused the failure to appear, and if the person immediately appeared once it was possible to do so, the person will have a valid defense to the failure to appear charge.

Once a case is over and all obligations have been fulfilled, the bond money is typically returned. Sometimes administrative costs are deducted.

Bail Bond Agents

Many defendants lack the financial means to post their own bail. To secure release, they may contract a commercial bond agent to act as surety for the bond. The agent posts bail after collecting a nonrefundable fee (typically 10 to 20 percent) from the defendant or family or friends. Assuming the defendant does not have money to give the agent as security, an agent will obtain other collateral, such as jewelry, securities, or electronics. In return, the bail bond agent agrees to pay the remaining amount to the court if the defendant fails to appear.

There are approximately 14,000 bond agents in the U.S. Most states require a bond agent to be licensed. However, the license typically is not specifically for bonding purpose, but for property and casualty insurance. To obtain the license, the applicant must meet certain educational requirements. This allows a potential bail bond agent to be appointed by an insurance company to write bail bonds. The defendant pays the agent for writing the bond. In turn, the agent pays the insurance company a premium. The bail agent is responsible for bond payment in the event a defendant fails to appear and cannot be located.

To ensure a defendant's appearance in court, a bail bond agent may require a defendant to check in by telephone or in person, or may require the defendant to be monitored in some other way. In extreme cases, a bail bondsperson may place a guard on the defendant. A bail bond agent is not obligated to post bail if the agent concludes a defendant is not likely to fulfill the obligations of the bond.

Illinois, Kentucky, Oregon and Wisconsin have outlawed the practice of posting bond for profit. In those jurisdictions, a defendant may be allowed to satisfy the requirements of the bond by posting 10 percent of the bail amount with the court. Some other jurisdictions, such as Maine and Nebraska, allow commercial bail on a limited basis.

Additional Resources

"How Courts Work," Division for Public Education, American Bar Association. Available at http://www.abanet.org/publiced/courts/bail.html, The American Bar Association, 2006.

Organizations

Professional Bail Agents of the United States

1301 Pennsylvania Ave., N.W., Suite 925
Washington, DC 20004 USA
Phone: (202) 783-4120
URL: http://www.pbus.com/
Primary Contact: Linda Braswell, President