How does the bail process work?
Posting of a bail bond. This process involves a contractual undertaking
guaranteed by a bail agent and the individual posting bail. The bail
agent guarantees to the court that the defendant will appear in court
each and every time the judge requires them to.
For this service, the defendant is charged a percentage of the bail
amount. Before being released the defendant or a relative or friend of
the defendant, typically contacts a bail bondsman to arrange for the
posting of bail. Prior to the posting of a bail bond, the defendant or a
co-signer must guarantee that they will pay the full amount of bail if
the defendant does not appear in court.
Typically, a family member or a close friend of the defendant will post
bail and cosign. Collateral is not always required for a person to be
bailed from jail. Often a person can be bailed from jail on the
signature of a friend or family member. Cosigners typically need to be
working and either own or rent a home in the same area for some time.
After an agreement is reached, the bail agent posts a bond for the
amount of the bail, to guarantee the defendant’s return to court.
If the defendant "skips", the cosigner is immediately responsible for
the full amount of the bail. If the defendant is located and arrested by
the bail agent the cosigner is responsible for all expenses the bail
enforcement agent incurs while looking for the defendant.
What is Bail?
The term Bail is used in several distinct senses: (1) It may mean the
security—cash or bond—given for the appearance of the prisoner. (2) It
may mean the bondsman (i.e., the person who acts as surety for the
defendant`s appearance, and into whose custody the defendant is
released). (3) As a verb, it may refer to the release of the defendant
(he was bailed out). The first meaning is the most common and should be
employed for clarity.
Admission to bail is the order of a competent court that the defendant
be discharged from actual custody upon bail. The discharge on bail is
accomplished by the taking of bail (i.e., the acceptance by the court or
magistrate of security—either an undertaking or deposit—for the
appearance of the defendant before a court for some part of the criminal
proceeding).
Bail is evidenced by a bond or recognizance, which ordinarily becomes a
record of the court. The bond is in the nature of a contract between the
state on one side and the defendant and his sureties on the other. The
agreement basically is that the state will release the defendant from
custody the sureties will undertake that the defendant will appear at a
specified time and place to answer the charge made against him. If the
defendant fails to appear, the sureties become the absolute debtor of
the state for the amount of the bond. What is the purpose of
bail?
The purpose of bail is to assure the attendance of the defendant, when
his or her presence is required in court, whether before or after
conviction. Bail is not a means of punishing a defendant, nor should
there be a suggestion of revenue to the government. Do I get my money back after the defendant goes
to court?
When the bailbond has served its purpose, the surety will be exonerated
(i.e., released from the obligation). Exoneration normally occurs when
the proceeding is terminated in some way or on the return of the
defendant to custody. After conviction, the defendant appears for
sentence. If sentenced to imprisonment the defendant is committed to the
custody of the sheriff, and the liability of the surety terminates. You
will not receive any money back that you have paid a bail bondsman. What if the person I bail
out skips?
The surety or depositor may arrest the defendant, or authorize a bail
enforcement agent or private investigator to do so for the purpose of
surrendering him into custody to ensure his future appearance. This
extraordinary power of the bail bondsman is of ancient origin. When bail
is given, the principal is regarded as delivered to the custody of his
sureties. The following may be authorized to arrest a bail fugitive: A
certified law enforcement officer. A person licensed by the State to do
so (i.e., holding a bail license in another state and authorized in
writing by the bail or depositor to make the arrest). A person
contracted and authorized in writing by the bail or depositor to do so,
Bail Recovery Agent, A private Investigator. Persons doing the foregoing
have been called bounty hunters, yet the term does not fit the facts of
today`s world, they are acting under contract. If the defendant does not appear and the court
orders a forfeiture, can it be set aside if he later appears?
A court will sometimes order bail forfeited on the defendant’s
nonappearance, then vacate the forfeiture to reinstate the bail when the
defendant appears and offers an explanation for the absence. Some
instances of this would be the nonappearance because of death, illness,
or insanity, or detention by civil or military authorities, and if the
absence was not with the connivance of the bail (acquiescence of the
bonding company to the absence). An example of illness would be where
the defendant is confined to bed by reason of a doctor’s order. If a
defendant flees and the prosecuting agency does not seek extradition the
bail may be exonerated.
If the defendant has skipped town, what
must the bail fugitive recovery person be able to show? Is that person a
bounty hunter?
That he possesses the authority to arrest by virtue of satisfying any
licensure requirements a state may impose upon such a person.
Additionally, he or she must have in their possession proper
documentation of authority to apprehend issued by the bail or depositor,
which shall include the name of the individual authorized to apprehend
the bail fugitive, the address of the principal office, the name and
business address of the bail agency, or other party contracting with the
individual authorized to apprehend a bail fugitive. In a historical
sense they are a bounty hunter as they generally are contracted to do
this and are remunerated for their services by the bail agency or other
contracting party. The bounty hunters of old are not the bail
enforcement agents of today. Some jurisdictions require significant
training and licensure of persons engaged in the recovery of bail
absconders. What if the underlying
criminal charge is dismissed?
Statutes provide for exoneration of the surety in the event of
dismissal. However, there is usually a time period within which the
prosecuting agency may seek to re-arrest and charge with a public
offense arising out of the same act or omission upon which the action or
proceeding was based. You will not receive any money back from the bail
bond company. When can bail be
increased?
After a defendant has been released, the court in which the charge is
pending may require him to give additional bail in an amount specified
or to meet an additional condition upon a finding made in open court
that the defendant has failed to appear; or that additional facts have
been presented that were not shown at the time of the original release
order, and the court may order him to commitment unless he or she gives
such bail or meets such other conditions. What else may happen when
a defendant fails to appear?
The court may issue a bench warrant for his apprehension and arrest for
the failure to appear upon the underlying charge, which would thus be a
separate triable offense, separate and distinct from the original
charge. The appropriate agency will enter each bench warrant issued on a
private surety—bonded felony case into the national warrant system
(National Crime Information Center (NCIC)). What is an immigration
bond?
An immigration bond issued for delivery of an alien guarantees that the
individual will appear for all I.N.S. hearings on time and depart the
United States at a specified date.
An immigration bond conditioned for maintenance of an alien, guarantees
that the person will be financially independent during the time he/she
is in the United States. What is a bail bond
indemnitor?
A bail bond indemnitor is the co-signer for the bail bond. The
indemnitor is responsible for seeing that all premiums are paid for a
defendant’s bail bond.
Bail bonds are normally good for one year. If the case continues for
longer than a year, additional premiums will be due and collected for
each year the case goes on.
Bail bond premiums are not refundable, as they are used for the bail
agent`s expenses, etc. The indemnitor is also responsible for additional
expenses incurred by the bail agent in the transaction of a bail bond,
such as long distance calls, travel, etc.
An indemnitor is no longer liable for the defendant’s bond when the
defendant has completes all of his/her court appearances, and when all
premiums have been paid. It is best to contact the bail bond company
when the bail bond is exonerated by the court, for the expedient return
of any collateral pledged and to confirm that the bond is exonerated.
In the event of forfeiture, the indemnitor is liable until the full
amount of the bail has been paid, plus any expenses incurred, or until
the court exonerates the bond. The bond then becomes void.
