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).
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.