The Role of a Bail Bondsman

After an arrest for a crime, you will likely face processing at the police station then go to the local jail. In most cases, you'll then have an opportunity to request that the court grant you release ahead of your trial. The court will determine any conditions for your release at a bail hearing.

There are four ways you can be released from jail after an arrest:

• Provide cash bail to the court. Depending on the jurisdiction, this may be for the full bail amount the judge ordered or a percentage.
• Use real estate as collateral to post a bond with the court.
• Use a local bail bond service (discussed below).
• Sign to appear on your own recognizance, along with any pretrial conditions set by the court. For example, while the case is pending, you may need to check in with the court's pretrial monitoring system, which has varying levels of supervision.

Ask a criminal defense lawyer for advice about bail and other issues after an arrest. They can help you decide which option best fits your situation. A bail bonds agent will prioritize their own interests, so an attorney can represent yours to make sure any deal is fair. 

Options If You Can't Afford Bail

The judge has set the bail necessary for a defendant's release from jail. If the amount of money is too high and the accused cannot raise it, they may turn to others for help. This may be a family member or friend.

It may also involve the services of a bail bondsman or bail bonds agent. These terms refer to people performing the same basic function. The traditional bail bondsman may work alone or run a small business. A bail bonds agent may work for a larger surety or insurance company.

How To Prepare for Your First Call to a Bail Agent

Here is the important information you must provide for bail bonds work. Have this information ready before you call a bail bonds agent:

• The exact location where the defendant is located, including the name of the jail
• The person's full name and booking number, if you can get it
• The bail amount the bail agent will need to pay to get the defendant out of jail

The bail agent will then discuss pricing options with you. A bail bondsman or agent will charge a nonrefundable fee, usually 10-20% of the total bail amount.

The Process of Using a Bail Bonds Agent

Once the bail bonding agent or company receives its fee, the bond agent gives the court a surety bond to release the defendant. As long as the defendant follows court orders to appear and doesn't miss any court dates, there is no need to pay the bail bonds agent any more money.

If the defendant misses a court appearance (if they "skip bail"), the court will keep the bail money provided by the bail bonding agency. When the defendant's nonappearance leads to a court forfeiture of the bond, the bail bonding company will now take steps to recover its loss from any collateral pledged on the case. This may be a loss to the defendant, their loved one, or a family member who co-signed the bail bond or put up the collateral. The court may issue an arrest warrant for the defendant, urging law enforcement to find and arrest them.

The bail bond agent also has the authority to locate and detain the defendant and then surrender them to the court. When law permits, bonding agencies may hire bounty hunters to track people who have skipped out on bail. Bounty hunters may not be limited by rules that apply to law enforcement. They can cross jurisdictional borders. They can use trickery and reasonable force. They may not fall under the limitations of the Fourth and Fifth amendments when it comes to searches, seizures, and statements.

Bail Bonds Agent: State Law Examples

Efforts at the state level to reform bail procedures occur with some frequency. In California, bail bonds agents assist defendants seeking pretrial release on most criminal cases. They must have a license to work in the state.

State officials continue to struggle with the high number of pretrial detainees who cannot post bail. In 2021, the California Supreme Court issued a ruling in the case In Re: Humphrey, finding it is unconstitutional to hold an arrestee via a bail order that they cannot afford unless the state shows by clear and convincing evidence that pretrial detention is necessary to ensure victim safety or the arrestee's return to court. The court took the view that several less restrictive means are available to monitor people on pretrial release to protect safety and ensure a return for court appearances.

Recently, California also undertook efforts to require the licensing of bail recovery agents (bounty hunters), changing its Bail Fugitive Recovery Persons Act (California Penal Code section 1299-1299.14). Such reforms gained traction after notorious incidents of abuse.

In New York, bail bonds agents and bail recovery agents must also obtain a license. The state provides helpful information on the state Department of Financial Services website, including a bail bond statement of rights and an information portal focused on bail enforcement agents.

A Critique of Commercial Bail Bonding

Many see inherent problems with the justice system's reliance on commercial bail bonding to ensure people show up in court.

High Bail Amounts

The first criticism of bail bonding is that bail is often unaffordable for low-income people. They languish in jail while the wealthy go home. Even a nonrefundable premium of only 10% may be too high. This is not a reflection on the work of the bail agent but of inequities in the criminal justice system.

Advocates for reform on this issue stress that the focus of bail should be on whether the defendant is a flight risk. Will they return for court appearances? Once the bail becomes focused on a defendant's criminal record or general public safety concerns, it becomes artificially high.

Unfair Financial Losses for Others

The second criticism relates to the impact of the use of collateral. What happens if the accused skips their court hearing after their family has paid the bail fee? Now, the family has lost the total amount of the bond.

This can produce financial difficulties for the defendant's extended family. They could face foreclosure if they used collateral to obtain the bond (such as a home).

Lack of Bounty Hunter Regulations

A third critique involves the practice of using bounty hunters. How well do states regulate the bail bonding industry? An Atlantic article described bounty hunters as "acting as wildly unregulated quasi-police." Under certain circumstances, they may use deadly force to recover their "skip."

An 1872 U.S. Supreme Court ruling, Taylor v. Taintor, lent support to the bail bonds agent's authority to recover their subject. It stated that such authority stems from the responsibility they incur and their contract with the subject.

Proposed Solutions

In response to these criticisms, some have called for abolishing commercial bail bonding and the universal use of court deposit systems. The defendant would pay a deposit of 10% of the bail to the court, which would be returned after the trial (less a small administrative fee). Others have called for the use of recognizance bonds in most nonviolent offenses.

Is the Use of a Bail Bonds Agent Right in Your Case? Talk to an Attorney

The police arrest you for a crime. The judge sets a high bail based on your prior record, including several misdemeanors. You want to get home to your family and prepare for trial. You don't have the funds to post the bail. What should you do? If you're facing criminal charges, you can talk to an experienced criminal defense attorney in your area. An attorney can help you prepare a defense. They can also discuss the types of bail with you, including whether using a bail bonds service makes sense.