This entry contains information applicable to United States law only.
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.
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 percent 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. Read more about bail bonds.
A bail bond agent, or bondsman, is any person or corporation which will act as a surety and pledge money or property as bail for the appearance of a criminal defendant in court. Although banks, insurance companies and other similar institutions are usually the sureties on other types of contracts (for example, to bond a contractor who is under a contractual obligation to pay for the completion of a construction project) such entities are reluctant to put their depositors’ or policyholders’ funds at the kind of risk involved in posting a bail bond. Bail bond agents, on the other hand, are usually in the business to cater to criminal defendants, often securing their customers’ release in just a few hours.
The first modern bail bonds business in the United States, the system by which a person pays a percentage of the court specified bail amount to a professional bonds agent who puts up the cash as a guarantee that the person will appear in court, was established by Tom and Peter P. McDonough in San Francisco in 1898.
Bond agents have a standing security agreement with local court officials, in which they agree to post an irrevocable “blanket” bond, which will pay the court if any defendant for whom the bond agent is responsible does not appear. The bond agent usually has an arrangement with an insurance company, bank or another credit provider to draw on such security, even during hours when the bank is not operating. This eliminates the need for the bondsman to deposit cash or property with the court every time a new defendant is bailed out.
Bond agents generally charge a fee of 10-12% of the total amount of the bail required in order to post a bond for the amount. This fee is not refundable and represents the bond agent’s compensation for his or her services. As the practice of paying a 10% cash premium for a bond became widespread, some courts have recently instituted a practice of accepting 10% of the bond amount in cash, for example, by requiring a $10,000 bond or $1,000 in cash. In jurisdictions where the 10% cash alternative is available, the deposit is usually returned if the case is concluded without violation of the conditions of bail. This has the effect of giving the defendant or persons giving security for the defendant a substantial incentive to make the cash deposit rather than using a bail bond agent.
For large bail amounts, bond agents can generally obtain security against the assets of the defendant or persons willing to assist the defendant. For example, for a $100,000 bond for a person who owns a home, the bond agent would charge $10,000 and take a mortgage against the house for the full penal sum of the bond.
If the defendant fails to appear in court, the bond agent is allowed by law and/or contractual arrangement to bring the defendant to the jurisdiction of the court in order to recover the money paid out under the bond, usually through the use of a bounty hunter. The bond agent is also allowed to sue the defendant for any money forfeited to the court should the defendant fail to appear.
In most jurisdictions, bond agents have to be licensed to carry on business within the state. Several unusual organizationsoften provide bail bonds.
Four states--Illinois, Kentucky, Oregon, and Wisconsin--have completely banned commercial bail bonding, usually substituting the 10% cash deposit alternative described above. However, some of these states specifically allow AAA and similar organizations to continue providing bail bond services pursuant to insurance contracts or membership agreements.
The economically discriminatory effect of the bond system has been controversial, and subject to attempts at reform since the 1910s, at least. See, e.g., Frank Murphy‘s institution of a bond department at Detroit, Michigan‘s Recorder’s Court.
In addition to the use of bail bonds, a defendant may be released under other terms. These alternatives include Own Recognizance or Signature Bond, Cash Bond, Surety Bond, Property Bond and Citation Release. Alternatives to Bail are determined by the court.