How Bail Works

Overview
Release Options
Cash Bond
Surety Bond (common Bail Bond)
Property Bond
Own Recognizance (OR)
Citation Release (Cite Out)
Occasions When Bail May be Granted
Who Sets Bail Amounts?
Who May Accept Bail?
The Right of the Surety and Bail Agent to Pursue Principal Who Has Fled
Example Bail Agreement
Bail Ethics

Overview
When an individual is arrested for a crime, the person is typically taken to a local detention facility for booking prior to incarceration in a lock-up station or county jail. Once arrested and booked, the defendant has several options for release pending the conclusion of his or her case.

The Bail system is designed to guarantee the timely appearance of a defendant in court. Bail is also an insurance policy for the state that the defendant will appear to face charges. Further, the legal intent of release on Bail is not to relieve the defendant of obligations except for appearing, it is the retention of control over the defendant to the end that justice might be administered.

Release Options
There are five basic Release Options:

  1. Cash Bond
  2. Surety Bond (common Bail Bond)
  3. Property Bond
  4. Own Recognizance (OR)
  5. Citation Release (Cite Out)

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Cash Bond
Cash Bond requires an individual to post the total amount of the Bail (not just 10%) in cash. The court holds this money until the case is concluded. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. In this case, the defendant may be his or her own guarantor.

Note that recent federal laws restrict cash bails in cases involving narcotics. In these cases, all cash or assets used to secure a Cash Bond or Surety Bond must be proven to have not originated from narcotics trafficking before bail is granted.

Surety Bond (common Bail Bond)
The Surety Bond is a series of contracts which guarantee the defendant's appearance in court. When a professional Bail Bond Agency guarantees that appearance, it is called a Surety Bond and the Bond Agency is fully liable if the defendant does not appear through an insurance company, called the Surety. In turn, the Bond Agency charges a Premium for this service and often requires collateral from a guarantor. The guarantor generally knows the defendant and is guaranteeing appearance in court. Ironically, while a defendant who fails to appear in court is subject to additional charges, he or she is not normally liable for any bond forfeitures (unless the guarantor arranges such an agreement with the defendant).

Property Bond
In rare cases and a few jurisdictions, an individual may obtain release from custody by means of posting a Property Bond with the court. The court records a lien (or right) on the property to secure the bail amount. If the defendant fails to appear, the court may institute foreclosure proceedings against the property. Often, the equity of the property must be twice the amount of the bail set.

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Own Recognizance (OR)
OR constitutes an administrative pre-trial release. Usually court administrators or judges interview individuals in custody and make recommendations to the court regarding release on OR (i.e. without any financial security to insure the appearance).

Citation Release (Cite Out)
This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.

Who Sets Bail Amounts?
A judge or magistrate normally sets the Bail amount for a particular case according to a county Bail Schedule (a.k.a. Schedule of Bail for All Bailable Offenses) and the particulars of a case. The Bail Schedule itself is usually set annually by a majority vote of superior, municipal, and other judges.

In setting or denying bail, the judge or magistrate's first concern is the protection of the public, followed by the seriousness of the offense and previous criminal record. Further, the Judge must be convinced that no part of the Bail was feloniously obtained.

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Who May Accept Bail?
In most jurisdictions, a judge, a bail clerk, a court clerk, a magistrate, or a designated jailer can accept Bail. Note that this usually does not include the arresting officer.

Occasions When Bail May be Granted
Bail is normally granted when:

Note also that most jurisdictions will not grant Bail for capital crimes or violent felonies without the defendant first attending a hearing for which the prosecuting attorney is granted time to prepare (often 2 court days).

A defendant charged with a crime punishable by death usually cannot be granted Bail if the proof of his guilt is evident or the presumption thereof great.

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The Right of the Surety and Bail Agent to Pursue Principal Who Has Fled
The Surety (and through them, the Bail Agent) in a Bail Bond have the right to turn their Principal (the defendant) over to the Court (via law enforcement) at any time, and to this end may pursue and seize him wherever they may find him, even though that be in another state.

More plainly, the Bail Agent or Surety may cancel the Bail at any time and turn in the defendant if they deem necessary (e.g. defendant has left his job, cannot be located, or is reported to be planning flight). By common law, the Surety may arrest the defendant who has failed to appear at any time and in any place. This arrest is legally considered a continuation of the original custody and has been likened by the U.S. Supreme Court (Taylor v. Taintor 16 Wall, 366) to the rearrest of an escaped prisoner by the Sheriff. In the same case, the Court also related that Bail was intended to transfer custody from the Sheriff to the Surety, not to discharge the defendant from custody.

More plainly, the Bail Agent may use forcible entry and is not required to have a warrant or court order.

The Supreme Court has also ruled that "Bail have no power to arrest the principal in a foreign country" (Reese v. S. 9 Wall 13).

The Surety and its Bail Agent may empower any person of suitable age to arrest a defendant (usually by providing written authority on a certified copy of the certificate of deposit).

In summary, Bail Agents have more powers that States do in pursuing and arresting principals (defendants). Bail Agents do not need warrants or extradition proceedings as States do.

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Example Bail Agreement

An order having been made on the 1st day of July, 1997, by J. Bench, a judge of the Justice Court of Callahan County, that I. B. Busted, be held to answer upon a charge of Spousal Abuse, upon which he has been admitted to bail in the sum of twenty thousand dollars ($ 20,000); we Mother Busted and Uncle Busted, of 111 Blue Jay Way, Callahan City, hereby undertake that the above-named I.B. Busted will appear and answer any charge mentioned, in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation, or if he fails to perform either of these conditions, that we will pay to the people of the State of California the sum or twenty thousand dollars ($ 20,000). If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith against the said Mother Busted and Uncle Busted, and the defendant if he or she be a party to the bond, for the amount of their respective undertakings herein, as provide by Sections 1305 and 1306.

Bail Agent Ethics ( excerpted from the California Bail Agents Association)
The bail licensee should endeavor constantly to be informed regarding current laws, proposed legislation, governmental orders or regulations, and other significant information and public policies which may affect the interests of the client.

The bail licensee should make a constant practice of full and complete disclosure to all parties, be they principal or indemnitor, of any and all possible liabilities, penalties or detriments which may arise from their involvement in that particular undertaking which secures the release from custody of a person who is charged with a criminal offense.

The bail licensee should not, prior to forfeiture or breach, arrest or surrender any principal and thereby terminate his or her release from governmental custody unless the licensee can materially show good cause for such action.

The bail licensee, upon receipt of notice of forfeiture or breach where notice is required, or upon personal knowledge of forfeiture or breach, should promptly and formally notify any and all indemnitors and real parties of interest of the forfeiture or breach by the principal, and the bail licensee should at that time concisely state the liability thereby incurred or pending.

The bail licensee should supply all indemnitors to an undertaking with a true copy of any document representing a binding legal contract to which she or he is to be or is being committed.

When an examination of the material factors of a potential undertaking reasonably convinces the bail licensee that she or he will be unable to undertake that particular bail relationship, the bail licensee should immediately inform all involved parties that she or he will not be able to secure the release of the defendant so that the defendant or his or her affiliates may promptly seek his or her release by another means.

Every bail licensee should comply in full with the laws and regulations governing the transaction of bail. Such compliance must necessarily include those matters dealing with the trust and fiduciary relationship as it relates to moneys and properties which may secure and undertaking. The highest moral and ethical practice should be maintained when entering into a trust or fiduciary relationship.

The bail licensee should not, except as provided by law, engage in activities that constitute the practice of law, and should refrain from making comments and representations which may lead the public to believe that the bail licensee is practicing law. [Practicing attorneys are generally not allowed to hold Bail Agent licenses]

Unless compelled to do so by law or by court order, the bail licensee should not divulge or disclose to any person or agency personal information regarding the principal or indemnitor of an undertaking which has not been forfeited or breached. The inherent right to privacy of the individual, and the position of trust of the bail licensee, demand compliance with this concept.

The bail licensee should make great efforts to verify and confirm any information which he or she may give to a court, law enforcement agency, or any other public agency.

The bail licensee shall not conspire with other bail licensees to regulate rates or restrict trade with the bail profession. The bail licensee should avoid controversy and conflicts with fellow bail licensees, and should not voluntarily disparage the business practice of a competitor, nor volunteer an opinion of a competitor's transaction. However, the bail licensee should also inform fellow bail licensees of established hazards involving a prospective client if such hazards truly exist.

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