Bondsman or Bail Agent

Bail is the means by which the U.S. criminal justice system permits the release of a defendant from custody while ensuring his appearance at all required court proceedings. Bail (from the French bailler, to deliver) is the legacy of Anglo-Saxon jurisprudence wherein defendants were delivered to their sureties, who gave security for their appearance. Current practice allows a number of kinds of bail, the most common of which are the following:

• 1.
  Deposit bail, usually 10% of the face amount of the bond, deposited with the court, returnable to the defendant upon making required appearances.
• 2.
  Own recognizance release, wherein the defendant is released on his or her promise to appear, but liable for the full amount of the bail should he or she default in appearing.
• 3.
  Financially secured release through a commercial surety, called a bondsman or bail agent. (The commercial bond approach is by far the most effective, as demonstrated in a Bureau of Statistics study that compared commercial bonding with all other pretrial release methods in getting defendants to court.)

This entry focuses on the third method of bail and the role of the bail agent. Bail bonds initially were put up by people who pledged their own property as security for the bond. They became known as “property bondsmen.” This genre still exists in a limited fashion in a few southern states, but it is becoming a thing of the past because most states prefer the uniformity of regulation and collection certainties where corporate sureties are employed. Hence, the following information will focus on the bail agent, who is a professional retail bond writer and who generally operates as an independent contractor using a surety company's credentials in posting his or her client's appearance bond.

When a person is arrested on probable cause of having committed a criminal offense, he or she is incarcerated and booked into a detention [Page 28]facility. Bail is determined by a preset bail schedule or by a magistrate prior to arraignment. A bail agent is contacted, and he or she arranges to post the defendant's bail, whereupon the defendant is released. The bail agent charges the defendant a premium (usually 10% of the bond) for assuming the risk of the defendant's not appearing. If the defendant fails to appear, the court declares the bond forfeited and the bail agent, usually after getting an opportunity to recover the absconded defendant, has to pay the forfeiture, which constitutes the full amount of the bond. (In addition, most jurisdictions permit revocation, which allows the agent to return the defendant to custody before the court date in order for the agent to avoid liability. This may require the agent to return the premium to the defendant.)

Bail is a straightforward procedure, but can be complicated by a number of factors. Bail is both a criminal and civil matter. The bond is an integral part of a criminal case, but attempts to collect breaches of the bond's conditions are strictly civil in nature. Furthermore, significant statutory variation, involving bail forfeiture, exoneration, remission, and fugitive recovery, vary from state to state, within political subdivisions of states, and between federal and state criminal justice systems. In addition, there are a myriad of differences in local court rules, practices, forms, and procedures. Many states regulate commercial bail through their departments of insurance. A bail insurance company must qualify for admission in each state under the same standards as any other insurance company. Some states even require a company to maintain funds on deposit with the insurance department as a hedge against forfeitures. Other states leave administration of bail to local sheriffs, courts, judges, or bail bond boards.

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