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Arrest, Booking, and Bail

In the criminal justice system, high-profile criminal cases often have staggeringly high cash bail, whether in the news or in legal dramas. The amount of money can range from thousands to millions of dollars, based on the seriousness of the offense. In cases where the amount of the bail is set at a high cash amount, a defendant may have to get financial assistance from a friend, relative, or a commercial bail bond agent to post bail.

A bail bond agent, or bail bondsman, guarantees the bond for people charged with crimes who can't afford the amount of the bond. Each state, and sometimes each county within a state, has its own bail bond regulations.

However, not every criminal case involves high cash bail. When a defendant has little to no criminal record, bail is set at a relatively small amount for first-time offenders or misdemeanors. In some cases, defendants get released without a judge setting bail. This is known as release on one's own recognizance, a written notice promising to appear for future court dates.

Understanding the role of bail bond agents and the laws that regulate their practices will help you make the right decision if you find yourself arrested on criminal charges. The article below will provide an overview of the following:

Bail Bond Agents: The Basics

There are approximately 15,000 bail bond agents in the United States. Most states that allow commercial bail bonds require a bond agent to get a license. However, the license typically is not specifically for bonding purposes but for property and casualty insurance purposes.

To obtain the license, the applicant must meet specific educational requirements. After the license issuance, a bail bond agent must get certified by an insurance company to write bail bonds.

Generally speaking, a bail bond agency provides a surety bond. The agent posts bail after collecting a nonrefundable fee (typically 10 to 20 percent) from the defendant, family, or friends.

If the defendant lacks the cash to give the agent as security, an agent might obtain other collateral. In return, the bail agent agrees to be liable for the remaining amount to the court if the defendant fails to appear. Examples of other collateral a surety company will hold include:

  • Jewelry
  • Securities
  • Electronics
  • Motor vehicles
  • Real estate

Where the defendant has nothing to put as security or collateral for the bond, family or friends can provide it instead and become a co-signer (also known as an indemnitor). This carries significant risk if the defendant fails to appear for their court date. The co-signing family or friend may not get their money back.

Typically, bail bond agents have arrangements with local courts under which the bondsmen agree to post a blanket bond. The bond frees the bondsman from depositing cash or property with the court whenever a new client is taken on.

Should any of a bondsman's clients fail to appear at trial, the court can be paid from the bond. A bail bondsman is not obligated to post bail if the agent concludes that a defendant is unlikely to fulfill the bond's obligations.

How Do Bail Bond Agents Ensure Court Appearances?

After a bail hearing to ensure a defendant's appearance in court, a bail bond agent may require a defendant to:

  • Check-in by telephone
  • Check-in by coming in person
  • Be monitored electronically, e.g., through social media

The court will usually issue a bench warrant if a bonded defendant fails to appear. This type of arrest warrant allows any law enforcement officer to detain and bring you into custody. It is essentially a revocation of the court order authorizing your pretrial release. Additionally, you forfeit the full amount of your bail.

Depending on the state, a bail bond agent may hire a bail recovery agent (bounty hunter) to find and apprehend the defendant in exchange for a percentage of the bail forfeited to the court.

The following jurisdictions have banned or restricted the use of bounty hunters:

  • District of Columbia
  • Florida
  • Illinois
  • Kentucky
  • North Carolina
  • Oregon
  • South Carolina
  • Wisconsin

Limitations on Commercial Bond Agents

Many states have been working to reform their bail bond laws over recent years. The biggest critique is that cash bail unfairly prejudices the poor and economically disadvantaged. Although the Eighth Amendment prohibits excessive bail, in practice, many defendants and their families cannot afford to pay the bail set by the courts.

Defendants must choose between remaining in custody or paying the nonrefundable fee to commercial bail bond companies. These companies are for-profit and have discretion whether to contract with defendants and their families. Those who cannot afford the cash bail or fail to secure a contract with a bail bond agent remain jailed.

The number of annual jail admissions doubled in the past three decades to 12 million. While the average stay in jail is reportedly 14 to 23 days, some defendants may stay in jail for months or years, awaiting trial. Illinois was the first state to abolish cash bail and institute alternative methods to determine pretrial release. Some jurisdictions have implemented the use of risk-based assessments. Factors assessed include:

  • The seriousness of the offense and the danger to public safety (e.g., felony domestic violence or driving under the influence (DUI)
  • A defendant's prior criminal record (e.g., felony convictions)
  • Strong ties to the community (e.g., employment, length of residence, family, etc.)

Jurisdictions that allow commercial bail bonds, such as the California Department of Insurance (CDI), regulate the bail bond industry subject to their penal code. The American Civil Liberties Union (ACLU) and other organizations are pushing for more oversight and reform in the remaining jurisdictions that allow for-profit commercial bail bonds.

Contact an Experienced Criminal Lawyer for Help Dealing With Bail or Bail Bond Agents

Posting bail can be a financial gamble. Before you use your resources to post bail for yourself or someone you love, learn about the legal implications and consequences of failing to appear after posting bail.

Additionally, state bail bond regulations change frequently and vary from region to region. Contact a local criminal defense attorney today to learn more about bail bond agents, bail forfeiture, and your criminal case in general.

Learn About Arrest, Booking and Bail

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