BAIL BOND
A written promise signed by a defendant or a
surety (one who promises to act in place of
another) to pay an amount fixed by a court should
the defendant named in the document fail to
appear in court for the designated criminal proceeding
at the date and time specified.
A bail bond is one method used to obtain
the release of a defendant awaiting trial upon
criminal charges from the custody of law
enforcement officials. The defendant, the defendant’s
family and friends, or a professional bail
bond agent (or bail agent) executes a document
that promises to forfeit the sum of money determined
by the court to be commensurate with
the gravity of the alleged offense if the defendant
fails to return for the trial date.
Most defendants are financially unable to
post their own bail, so they seek help from a bail
agent, who, for a nonrefundable fee of 10 to 20
percent of the amount of the bail, posts bail. A
bail agent becomes liable to the court for the full
amount of bail if the defendant fails to appear
for the court date. Before agreeing to assume the
risk of posting bail, the bail agent requires collateral
from the defendant, such as jewelry,
SECURITIES, or written guaranties by creditworthy
friends or relatives of the defendant. This
collateral acts as security to ensure repayment
for any losses the bail agent might incur. If the
defendant appears to be a “poor risk,” and
unlikely to return to court for trial, the bail
agent will refuse to post bail. A defendant who
has a record of steady employment, has resided
in the community for a reasonable length of
time, and has no prior criminal record is considered
to be a good risk.
The bail agent, the defendant, or another
interested party posts bail in the form of the bail
bond at the court where the defendant is
required to return for the proceeding. The court
clerk issues a bail ticket or similar document,
which is sent to the police to notify them that
bail has been met. The defendant is released
from custody when the bail ticket is received by
the police. Liability under the bail bond ends
when the defendant fulfills the conditions of the
bond by appearing in court on the specified
date, or if the terms of the bond become impossible
to execute, such as by the death of the
defendant or by his or her arrest, detention, or
imprisonment on another offense in the same or
different jurisdiction.
If a defendant fails to appear for trial on the
date specified in the bail bond, the court will
issue a warrant for the defendant’s arrest for
“jumping bail,” and the amount of the bond will
be forfeited to the court. The bail agent is generally
authorized by statute to arrest the defendant
and bring him or her back for criminal proceedings.
Kentucky, Illinois,Wisconsin, Nebraska, and
Oregon have enacted laws making it illegal to
post bail for profit, thereby outlawing the occupation
of bail bond agent.
A bail bond may be similarly used in cases of
civil arrest to prevent a defendant from fleeing a
jurisdiction to avoid litigation or fraudulently
concealing or disposing of assets in order to
become judgment proof (incapable of satisfying
an award made against him or her if the plaintiff
is successful).
FURTHER READINGS
Berand, Laura, and Jean Montoya. 2002. Criminal Litigation
in Action. Notre Dame, Ind.: National Institute for Trial
Advocacy.
Marcus, Paul. 2003. Criminal Procedure in Practice. Notre
Dame, Ind.: National Institute for Trial Advocacy.
Simmons, Don, Jr. 2002.“Making a Living Off Making Bail.”
Roanoke Times & World News.
CROSS-REFERENCES
Asset; Collateral; Judgment Proof.
