What is a Bail Bond?
A bail bond allows defendants to leave jail while awaiting trial when they can’t afford bail on their own — in exchange for a fee and often assets that can be seized if they fail to appear in court.
🤔 Understanding a bail bond
Many people who are arrested and charged with crimes have to post bail to get out of jail while they await trial. Bail is a deposit, often cash, that defendants put down to assure the court that they’ll come back when required. Those who can’t afford to pay the full amount themselves can turn to a bail bondsman. Defendants typically have to pay the bondsman a percentage of the bail up front and often put up collateral, such as property, cars, or jewelry. In exchange, the bail bond company promises to pay the bail in full if the defendant fails to show up in court. Defendants get their collateral back if they appear, but the bail bond company keeps it if they don’t. Defendants can also find a guarantor or cosigner for their bond who agrees to pay the bail in full or put up collateral that is seized if the defendant flees.
Let’s say Dan commits a crime, and the police arrest him. The court sets Dan’s bail at $20,000, but he can’t pay that sum on his own. Dan enlists the help of a bail bondsman to take out a secured bail bond. The bondsman requires payment of 10% up front, so Dan pays him $2,000. He also puts up his two family cars as collateral (an asset that is forfeited if Dan doesn’t come through). In return, the bail bondsman cosigns a bail bond that allows Dan to go home. As long as Dan appears at court hearings, he’ll get his cars back, and the bondsman keeps the $2,000. If Dan doesn’t appear as promised, the bondsman seizes his cars and pays the court the entire $20,000.
A bail bond is kind of like a secured loan for a car…
In the case of a loan, the bank lends you money with the expectation that you’ll pay it back. If you don’t make payments, the bank will seize the car (which is the collateral). With a bail bond, you’re expected to appear in court rather than make monthly payments, but if you don’t hold up your end of the bargain, you still give up the collateral.
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How does bail work?
When you hear “bonds,” you may think of the securities that companies and governments issue to raise money. In the criminal justice system, a bond is something very different.
When police arrest someone they suspect committed a crime, officers usually take that person into custody in a county or municipal jail. If prosecutors file charges, the defendant will remain behind bars until one of three things happens:
- The individual is released with a “notice to appear” in court. Failing to show up at hearings can lead to serious consequences, like jail time or fines. This policy is common for low-level crimes such as petty theft.
- The person stays in custody until he or she has a bail hearing, then either pays bail in full or gets a bail bond. Setting bail is common for violent crimes or felonies.
- The person stays in jail until charges are dropped, or until he or she is convicted or acquitted. This happens when the alleged crime is so egregious that the court denies bail or when the defendant can’t afford to pay bail or get a bail bond.
How do courts determine bail?
Many states use a bail schedule, which indicates crimes for which defendants can be released without bail and the bail amounts courts can set for various offenses.
While police have to abide by the bail schedule when releasing someone, judges have discretion when it comes to setting bail for each individual. Sometimes, especially for a low-level crime involving a defendant who isn’t a flight risk, the judge may choose to release the person on their own recognizance — or based on the promise that he or she will show up in court.
Alternatively, a judge can release a defendant on an unsecured bail bond. This involves the defendant signing a contract agreeing to appear in court or pay the full bail amount. The defendant doesn’t have to pay any money up front or put down assets as collateral.
In some states and for some crimes, judges may deny bail altogether for defendants charged with serious crimes or considered likely to flee.
Judges consider many factors when setting bail:
- Is the person a flight risk? If a judge believes someone won’t show up in court, they may set bail higher or deny it altogether.
- Does the person have connections in the community? Someone with strong links, such as a family or local business, may be more likely to appear in court.
- Does the person have others who rely on him or her? Judges might consider whether someone is responsible for caring for children or supporting a family financially.
- Is the person at risk of losing a job? If the defendant may end up unemployed and unable to support himself or his family, the judge may take that into account.
- Does the person have a criminal history? If someone is a repeat offender, a judge may consider that when setting bail. They’ll be especially wary of a repeat offender who has a history of failing to appear in court.
- How severe was the crime? For the most part, bail increases along with the severity of the crime. Judges don’t set the same bail amount for petty theft as they do for murder.
- Is the person a public safety risk? If the judge sees someone as real safety risk to the community, he or she will consider that when setting the bail amount or choose to deny it.
How do you pay for bail?
Rules surrounding bail payments can vary from state to state. In general, you pay bail at a courthouse or jail to a government employee tasked with receiving the payments. You usually have to pay cash, though some jurisdictions accept credit cards. Once bail is paid, the official who receives the payments will notify the jail, which releases the defendant.
If someone can’t afford to post bail, he or she might consider a secured bail bond. Defendants can find a bail bondsman in online databases such as BailBond or Bail Bonds Network. The bail bondsman agrees to pay bail in the event the defendant does not appear in court. In exchange, he or she charges a fee. Some states set a maximum (usually 10% to 20% of the bail amount), while others don’t. The defendant may also have to provide collateral that the bondsman will seize if the defendant doesn’t show up in court. The bail company may hire a bounty hunter to capture clients that fail to appear since it wants to avoid being on the hook for the full bail amount.
Defendants may be able to avoid offering collateral if they have someone else cosign the bond (meaning the cosigner promises to pay the full amount if the defendant disappears) or, in rare cases, if they have a good credit history.
Another option for securing bail is through a surety bond. This is a contract between three parties: the defendant (or someone else on their behalf), a bail agent, and a type of insurance company (a surety company). In this situation, the insurance company promises to pay the full bail amount if the accused fails to appear in court as promised.
One final option for securing bail is through a property bond. This involves a defendant (or someone else on their behalf) pledging a tangible piece of property, such as a home or car, to be released. If the person doesn’t appear, the court can file a lien against the property.
How and when is bail money returned?
If defendants pay the full bail amount in cash, they get their money back after making required court appearances. If they don’t show up in court when they’re supposed to, they don’t recoup the bail money. In the case of a bail bond, defendants can recover the collateral they put up if they’ve made it to mandatory court hearings. But they won’t retrieve the fee they paid — That’s the cost of doing business with a bail bondsman.
What are the advantages and disadvantages of the bail bond system?
One benefit of the bail bond system is that it allows people who could otherwise not afford bail to get out of jail while awaiting trial.
On the other hand, the bail bond system has been criticized for the disproportionate impact it has on low-income people. Someone with plenty of money to post bail can leave jail, and as long as they appear in court, they can recover the full amount. Low-income defendants, meanwhile, have to choose between staying in jail before they are proven guilty, even when charged with a relatively low-level crime, or paying a hefty fee to a bail bondsman. They can never recover that expense, even if they are found innocent at trial.
Cash bail in general has been criticized for disproportionately hurting low-income people and minorities by forcing them to spend months or even years in jail before they’ve been found guilty of a crime. Some have argued that this results in people pleading guilty even when they aren’t in order to get out of jail.
Four U.S. states (Illinois, Kentucky, Oregon, and Wisconsin) have passed laws that prohibit bail bonds by commercial bail bond agents. In those states, people who can’t afford the full bail amount can pay a 10% deposit to the court to be released. One state, California, has banned cash bail altogether.
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