How Bail Bonds Work
HOW BAIL BONDS WORK
The Surety Bond
The Surety Bail Bond is an alternative to Cash Bail. The process involves a contractual undertaking guaranteed by an admitted insurance company having adequate assets to satisfy the face value of the Bail Bonds. This guarantee assures the Courts that the Bail Bonds Company will pay the Bail Bond forfeiture if the defendant fails to appear for their scheduled court appearances. The Bail Agent’s guarantee is made through a Surety Bail Bonds Company.
For this service, the defendant is charged a premium. The Premium set by the State is 10% and is nonrefundable. Prior to posting of a Surety Bond, the Bail Bonds Agent undertakes a detailed interview of the proposed guarantor of the Surety Bail Bond, as well as the defendant, as part of the underwriting procedure for the Bail Bond.
By involving the family and friends, as well as through the acceptance of collateral, the Bail Bond Agent can be reasonably assured that an individual released on a Surety Bond will appear at their appointed court dates. After this procedure is concluded, if an agreement is reached, the Bail Agent posts a Bond for the amount of the Bail, to guarantee the defendant’s return to court.
Considerations for Bails Set by Courts
Nature of the offense.
Defendant’s prior records.
Weight of evidence.
Defendant’s employment status.
Defendant’s reputation in the community.
Defendant’s financial ability to obtain a Bail Bond.
Defendant’s family ties.
Defendant’s living situation.
THE PURPOSE OF BAIL
Bail is a basic assurance that an accused criminal (a defendant) will show up to court to stand trial for a crime that he or she is accused of committing. When a person is arrested as a suspect in a crime, the person is booked and put into jail to await trial. In many situations, that person may be allowed to post a bail bond, which assures that he or she will return to court. However, there are situations where a person is accused of a violent crime, has a criminal history, or is considered to be a flight risk, in which a judge may not grant bail.
If a judge does, however, grant bail, the amount of the bail will vary based on the locality and based on a variety of circumstances. In many cases, a defendant will call upon a bail bonding agency for help meeting bail. The bail bonding agency will supply the bail for the defendant to be released. The bonding agency is then responsible for ensuring that the individual shows up in court for his or her trial.
Bonding agencies get reimbursed by the defendant in cash, using loans from the defendant’s family and friends, and by taking advantage of the defendant’s collateral. Generally, the bonding agency requires a 10% cash payment in order to post bail. For example, if a defendant has a $10,000 bail, then the defendant may have to pay the bonding agency $1,000 in cash.
If the defendant doesn’t have this much money in cash, he may borrow money from family and friends. The bonding agency will then review the assets of the defendant (and possibly of the defendant’s supporters as well). The agency may take out a mortgage on the defendant’s house, for example, so that if the defendant fails to show up for court, the agency can acquire its portion of the assets.
The general purpose of bail is to offer the court some sort of guarantee that the defendant will return to court to stand trial. It is to give a defendant and a defendants cosigner the financial incentive to make sure the defendant appears for their court case.
HOW IS BAIL SET
When it comes to bail bonds, every defendant will have a different amount of money to pay in order to get out of jail on bail while waiting for his or her trial. The bail bond is a basic assurance that the defendant will return to court on the day of the trial. Bondsmen and bail bonding agencies that put up the bail for a defendant and responsible for ensuring that the defendant returns to court for the trial.
Severity of the Crime
Once the judge reviews the particular crime for which the defendant is accused of committing, the judge will determine how severe the crime appears to be. There are situations where a defendant is accused of committing a violent crime that, if released, the defendant could commit again or could pose a threat to society. In such situations, the judge might even deny bail for a defendant.
Generally speaking, the understanding is that the higher the bail, the more likely the defendant is to return to court on the day of his or her trial. As such, higher bails are usually set for more severe crimes when a judge wants to ensure that the defendant returns to court to serve trial for the charges against him or her.
There are a number of different factors that are considered when a judge sets bail. Often, the bail determination begins with a rate schedule, which differs by locality. A judge will also take the following considerations into account when he sets bail:
Prior Criminal History
If the defendant has a prior criminal history, the bail will generally be higher (or non-existent). On the contrary, if the defendant does not have a prior criminal history, then the judge may set a lower bail.
The final consideration that the judge will make is whether or not he believes that the defendant will be a flight risk. If a judge has any reason to think that the defendant may not show up in court for his or her trial, then the judge will increase the amount of bail (or eliminate the bail option altogether). In the event that the defendant does not show up to court, then the defendant may forfeit the money that he or she put up for bail. If the judge believes that the defendant will show up to court, then he may set the bail bond at a lower rate.
Also, there are situations where a person can be released from jail on their own recognizance. In such a situation, a judge does not believe that the person is a flight risk, they probably don’t have a criminal history, and the crime is not viewed as a violent crime. The defendant will merely have to sign a statement that they will return for trial in such a situation.
BENEFITS OF SOCIETY
As the debate over public versus private bail bond enforcement wages on, it is important to examine the evidence presented to determine the impact that bond enforcement has on society. In an article by Eric Helland and Alexander Tabarrok entitled, “Public versus Private Law Enforcement: Evidence from Bail Jumping,” the authors explore the efficiency of bail bondsmen over public bond enforcement or release on their own recognizance. Helland and Tabarrok compile failure to appear rates (FTAs), and they then compare the rates of surety bonds, which are those bonds that employ the use of a bail bondsmen, to public bonds, or those released on their own recognizance. Helland and Tabarrok affirm that bail bondsmen provide over a 50% decrease in FTAs as compared to release on their own recognizance. This evidence declares the efficacy of bail bondsmen over release on their own recognizance.
Obviously, the benefits of bail bondsmen are clear. They more effectively ensure that offenders are brought to justice in court on their assigned dates. Moreover, because bail bondsmen utilize the expertise of bounty hunters to track down defendants and perpetrators, they can guarantee the appearance or re-arrest of offenders. By guaranteeing that offenders appear in court, bail bondsmen and bounty hunters have the responsibility of protecting society from offenders who attempt to jump bail. Because of their financial obligation to an offender’s case, these bail bondsmen will use any means necessary to bring these criminals and offenders to justice, thus safeguarding the interest of citizens and society.
Not only do bail bondsmen and bounty hunters protect the interests of society, but they also provide services that save money for the citizens and taxpayers. When an offender fails to appear after being released upon their own recognizance, it is the responsibility of the police bureau to re-arrest this offender. However, often police resources are not readily available, and these offenders go without re-arrest for months or even years. These FTAs financially cripple the police bureaus and taxpayers. However, funds can be rescued from the depletion caused by release on their own recognizance by utilizing the more efficient methods of private bail bondsmen.
Private bail bondsmen and bounty hunters serve justice to offenders, not only protecting the safety of citizens, but also guarding their wallets. The efficacy of bail bondsmen is affirmed in the statistics provided by Helland and Tabarrok, and the impact of a 50% decreased FTA rate can most surely be tabulated. The calculations would certainly show how successfully bail bondsmen can provide reduced costs to police bureaus and taxpayers. Bail bondsmen and the bounty hunters they employ provide a twofold service to society both by safeguarding the lives of citizens and decreasing the financial burden of FTAs on taxpayers and police bureaus.
EFFICIENCY OF BAIL BONDS
Pre-trial release has a long history rooted in historic English statutes and laws. Bail laws in the United States developed out of these English laws that date back to even the 13th Century. When independence was declared by the colonies in 1776, bail laws took on slightly modified interpretation to more closely represent the ideals of the newly developing American principles. The early state Constitutions of some states, such as Virginia stipulated that, “excessive bail ought not to be required,” however, “if a crime be punishable by life or limb, or it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail.” Since then, various adjustments have been made, and the bail laws have been incorporated into the United States Constitution. Congress has also enacted various bail reform acts to protect the interests of both the offenders and the public. As the rights of offenders came into question, the Manhattan Bail Project in 1961 reaffirmed the notion that defendants could indeed be responsible for showing up in court at their scheduled date if released prior to trial. This project instituted further reforms that came up with the idea of release on own recognizance.
A bail bond can generally be defined as a written agreement signed by a defendant or a surety (bondsman) to pay a sum set by the court if the defendant fails to appear in court on the specified date assigned to them. A bail bond permits the defendant to be released before the occurrence of their trial, allowing them the freedom of living outside of a confined jail. The defendant, the defendant’s family, or a bail agent signs the bond agreement to promise to give up the full sum, which is usually proportionate to the gravity of the committed offense. When a bail agent or surety takes responsibility for the offender, the offender must pay them a fraction of the amount owed for bail, generally ten percent.
Typically, bail agents operate as independent contractors, meaning that they are private enterprises not using the resources of tax money. Bail agents will often use the credit of a surety company when posting for appearance assurances for clients or defendants. The surety company provides the bail agent with credit or standing as a security on the bonds, and in return, the bail agents pay small fees to the surety companies. The bail agent consequently charges the defendant 10% in addition to collateral for their pre-trial release. If a defendant fails to appear, a bail agent is granted the opportunity to recover the bail jumper. To track down and re-arrest these defendants, bail agents will use the services of bounty hunters. Bounty hunters will track down and re-arrest bail jumpers, bringing them to justice and ensuring that they reappear in court. These bounty hunters are extremely effective at tracking down defendants who skip bail, and in general, just the threat of a bounty hunter is enough to make most offenders show up in court on their assigned date.
Pre-trial release is not just comprised of bail bonds and bonding agents, however. Pre-trial release can be divided into two broad categories: financial conditions and non-financial conditions. Non-financial conditions include release on own recognizance, conditional release, and unsecured bond release, whereas financial conditions include surety or commercial bonds, deposit bonds, full cash bonds, and property bonds. The largest group in the non-financial conditions group is those released on their own recognizance, accounting for 20% of the 32% total represented in the genre. Surety bonds accounted for the largest group within the financial conditions genre, comprising 20% of the 30% total. So, in summation, the two genres can really be simplified and compared by looking at statistics for surety bonds versus release on recognizance.
According to the report by Thomas H. Cohen and Brian A. Reaves entitled, “Pretrial Release of Felony Defendants in State Courts,” those released on their own recognizance exceeded those released on commercial bail from 1990-1997. But, in 1998, surety bonds surpassed and continued to rise above recognizance releases. This shows a rise in the use of commercial bonds. So, what is the reason for this rise in the use of commercial bonds? The answer is that commercial bonds more effectively bring criminals and defendants to trial. As the report shows, those released on their own recognizance have a 26% failure to appear rate. In comparison, surety bonds only have a failure to appear rate of 18%. This is a drastic difference. Even more alarming are the similar re-arrest rates for the two groups, proving that recognizance release defendants are not apprehended and brought to trial. This can also be shown for the 5% increase in fugitive rates for the recognizance group.
Not only do commercial bonds provide better outcomes, but they offer other incentives as well. Commercial bonds effectively prevent overcrowding in jails without compromising the safety of the public. Because bounty hunters are given the task of hunting these offenders down, bail jumpers will be apprehended more speedily than those released on their own recognizance. Moreover, there are direct financial incentives for all parties involved in the commercial bail process. The bail agent obviously does not want to forfeit the entire bail sum, so it is in their best interest to ensure that the defendant shows up in court. Because commercial bail is a private enterprise, it does not burden taxpayers either. Most defendants are threatened by the mere thought of bounty hunters additionally, since bounty hunters do not require warrants for searching or seizing an offender. This causes most defendants to show up on their assigned date, or they risk being apprehended and rearrested by one of these bounty hunters. Finally, commercial bail allows the defendants the freedom to wait for their trial outside of the confine of a jail facility, protecting their rights and ensuring justice for all. Clearly, commercial bonds have a plethora of reasons that affirm their superiority over those released on their own recognizance.