How Do Bail Bonds Work?

Determining whether to grant a criminal defendant his or her right to bail is usually the very first decision that all judges make in a criminal case, and such a decision is not a trivial one, to say the least.

As Thanithia Billings (2016) notes in Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen in the Criminal Justice System, the decision whether to grant bail or not has a significant outcome in a criminal case. First, research has shown that detained defendants (instead of released on bail) during pretrial court proceedings are more likely to be convicted, are less likely to have their charges reduced, and are likely to have longer sentences than those who gain release before trial. Second, defendants are more likely to plead guilty if they are detained, compared to when defendants temporarily get out of jail through the bail mechanism. Therefore, the decision to grant bail or not can have significantly adverse effects on defendants who were not released before trial.

Because of the importance of the bail process, what follows will attempt to provide a simplified guide to those who wish to learn about the ins-and-outs of the bail system, with a focus on how it works in tandem with the court system.

How Do Bonds Work?

A bail bond is one of the many available pretrial release mechanisms within the United States criminal justice system, which means that it is one of those tools courts use to ensure that a criminal defendant will appear for their court appointments.

There are two forms of pretrial release mechanisms: (1) a financial form and (2) a non-financial form. The latter form would usually include release on their own recognizance, supervised release, and an unsecured (no money) bond.

What Is a Bail Bond?

A bail bond belongs to the first form of pretrial release mechanism when the judge decides how much the defendant must pay to the court if the defendant fails to meet the terms of conditional release from custody.

A bail bond itself has two types: 

  1. one the defendant signs the bond, which means the defendant himself or herself will need to procure the funds that will be given to the court to ensure he or she will appear in court at the appropriate times; 
  2. a bond person (a surety) lends the money to the defendant to guarantee the defendant will show up in court. The defendant signs these agreements also. The abovementioned second form of bail bond is otherwise known as a surety bond.

What Is the Bail Bond Process?

The surety bail bond process happens when a criminal defendant in the custody of court seeks to secure his or her temporary release from detention by posting a bail bond. This process will typically involve distinct actions and activities several parties undertake, namely, the court, the defendant himself or herself, an indemnitor, and a bondsman (or sometimes known as a “bail bond agent”).

How Do Bonds Work With Bail: Step-by-step

The usual steps involved in the operation of the surety bond process work as Johnsons and Stevens (2013) describe in The Regulation and Control of Bail Recovery Agents: An Exploratory Study. The step-by-step description below will not only answer the question of “How do bonds work with bail?” but will also answer the important question of “How do bail bondsmen make money?” which is something the defendant (or their family members or relatives)must factored into their decision of whether or not to go through the “surety bail bond route” should he or she wish to secure his or her temporary release from court custody.

Step 1: The defendant files an application for bail with the court, which has custody over him or her.

Step 2: If the judge approves the application after conducting a bail hearing, the judge sets the bail amount the defendant must pay the court before the defendant can gain temporary release. The court bases the amount on a myriad of factors, usually on the severity of the crime, the defendant’s criminal history, or the defendant’s connection to the community.

Step 3: After the defendant knows the amount of bail, the defendant then posts bail through a person known as the “indemnitor. ”The “indemnitor” will usually be a family member or relative of the defendant, but technically it can be anyone who appears on the defendant’s behalf to seek his or release from court custody pending trial. The indemnitor may be the defendant himself or herself.

Step 4: The “indemnitor” will contact a “bondsman” (or the surety) and enter into a contract in which the bondsman will financially pledge to the court to pay the amount of bail set by the court should the defendant fail to meet the conditions of the bail as imposed by the court.

Step 5: In exchange for the bondsman’s financial pledge in the immediate step above, which is a form of service that the bondsman renders in favor of the defendant and the indemnitor, either of the latter will need to pay a non-refundable fee (usually a certain percentage of the value of the bond, e.g. 10 % -15 %) to the bondsman.

This fee is non-refundable because even if the defendant successfully meets all conditions of the bail imposed by the judge, the bondsman keeps the fee, even if the bondsman doesn’t pay any amount to the court. This is, then, how a bail bondsman makes money from a bail bond transaction.

Step 6: The defendant himself or herself also enters into a separate contract with the bondsman, in which the defendant will promise that he or she will appear for all court appointments during a specific court date (or court dates) and other conditions set by the court in the grant of the bail application. These conditions may include travel restrictions, no-contact orders, mandatory check-in procedures, or even electronic monitoring.

Step 7: If the defendant fails to comply with the conditions imposed by the court, he becomes a fugitive and is, at the same time, in breach of his or her contract with the bondsman. In this case, the bondsman forfeits the full value of the bond to the court.

Step 8: Once the court orders the forfeiture, the bondsman will have to pay the full value of the bond to the court, if the defendant does not voluntarily surrender or the bondsman doesn’t return the defendant to the custody of the court within a certain time period.

Note that in this case, the bail bondsman does not make a profit because the non-refundable fee that was paid to it under Step 5 above will also be paid to the court, since it forms part of the total value of the bond. So, it is in the best interest of the bail bondsman that the defendant surrender to the court. A bail bondsman will then usually employ the services of a bail recovery agent (or more commonly known as a bounty hunter) who possesses the necessary skills to search for and apprehend defendants who are considered fugitives.

Step 9: The bondsman can then proceed to recover from either the indemnitor or the defendant the bond amount that the former paid to the court.

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Conclusions

Securing a defendant’s right to be released from detention temporarily through the bail system has been shown to provide a benefit to the defendant in terms of limiting the likelihood of his or her conviction or increasing his or her chances to have the charges against him or her reduced. But securing such a right is not a cheap nor a straightforward endeavor, as shown by the financial cost and legal complexities involved, specifically when securing bail via the surety bond system. Bail and bond are controversial political subjects.

Now, readers have new insights on the bail bond system and will serve as a ready-guide for action whenever faced with situations where they or their loved ones may be the subject of criminal proceedings.

Article by Mariia Synytska

Mariia Synytska is Content Lead at Lawrina, a legal portal that projects innovation in law. Mariia manages the content on the website, takes interviews with lawyers and law experts, and looks for the interesting topics for Lawrina's audience. If you would like to be a blogger for Lawrina, you can contact Mariia for all the details via email m.synytska@lawrina.com.

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