Bail Bond

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An agreement between the defendant and the court, or between the defendant, the surety (commercial or noncommercial surety), and the court, originally designed primarily to assure the defendant’s appearance in court and later expanded in the federal system and most states to include public safety protections. Bail bonds are sometimes called “appearance bonds,” as all bail bonds are minimally appearance bonds, but that term does not fully reflect the purpose of bail, which is to normally afford release while reasonably assuring court appearance and public safety.

Black’s Law Dictionary defines “bond” generally as an obligation or a promise, and “bail bond” as “[a] bond given to the court by a criminal defendant’s surety to guarantee that the defendant will duly appear in court in the future and, if the defendant is jailed, to obtain the defendant’s release from confinement. The effect of release on bail bond is to transfer custody of the defendant from the officers of the law to the custody of the surety on the bail bond, whose undertaking is to redeliver the defendant to legal custody at the time and place appointed in the bond.” A broader definition, however, correctly takes into account the fact that many defendants are released without third party sureties, and recognizes the dual purpose of bail.

In the law there are numerous types of bonds, and specifically several different types of “bail bonds,” all of which fall under one of two categories of pretrial release from custody or confinement: (1) those that require a secured financial condition of release; and (2) those that do not.* The United States Department of Justice, Bureau of Justice Statistics (“BJS”), provides the following categories and explanations of financial bonds that require immediate payment orsecured guarantee of payment prior to a defendant’s release from detention:

[Compensated] Surety bond – A bail bond company signs a promissory note to the court for the full [money] bail [bond] amount and charges the defendant a fee for the service (usually 10% [or more] of the full [money] bail [bond] amount). If the defendant fails to appear, the bond company is liable to the court for the full [money] bail [bond] amount. Frequently the [money bail] bond company requires collateral from the defendant [or friend or relative of the defendant for the full amount of the bail bond] in addition to the fee.

Deposit bond – The defendant deposits a percentage (usually 10%) of the full [money] bail [bond] amount with the court. The percentage of the [money] bail [bond] is returned after the disposition of the case, but the court often retains a small portion for administrative costs. If the defendant fails to appear in court, he or she is liable to the court for the full [money] bail [bond] amount.

Full cash bond – The defendant posts the full [money] bail [bond] amount in cash with the court. If the defendant makes all court appearances, the cash is returned. If the defendant fails to appear in court, the bond is forfeited.

Property bond – Involves an agreement made by a defendant as a condition of pretrial release requiring that property valued at the full [money] bail [bond] amount be posted as an assurance of his or her appearance in court. If the defendant fails to appear in court, the property is forfeited. Also known as ‘collateral bond.’**

BJS also provides the following categories of bonds that do not require immediate payment or guarantee of payment prior to a defendant’s release from detention:

Release on recognizance (ROR) – The court releases some defendants on a signed agreement that they will appear in court as required … [which] includes citation releases in which arrestees are released pending their first court appearance on a written order issued by law enforcement or jail personnel. [In many jurisdictions, a ROR (also known as “Own Recognizance,” “Personal Recognizance,” or “PR”) bond may also be an unsecured financial bond if it has money attached].

Unsecured bond – The defendant pays no money to the court but is liable for the full amount of [the money] bail [bond] upon failure to appear in court.

Conditional release – Defendants are released under specified conditions. A pretrial services agency usually conducts monitoring or supervision, if ordered for a defendant. In some cases, such as those involving a third-party custodian or drug monitoring and treatment, another agency may be involved in the supervision of the defendant. Conditional release sometimes includes an unsecured bond.*** There is growing recognition that “typing” bail bonds based on a single condition of release – money, such as when labeling a bail bond a “surety bond” or a “cash bond” – is an archaic practice, and thus the better practice (as reflected in the ABA Standards) is to refer either to “release” or “detention,” with release having one or more conditions –financial or non-financial – as limitations on pretrial freedom.

*Of course, there are other ways that defendants can be released from pretrial confinement, such as through an emergency release procedure in response to a court order placing limits on a jail’s population.

**Cohen & Reaves, Felony Defendants in Large Urban Counties, 2006, U.S. Dept. of Justice, Bur. of Justice Stats. (May 2010), at 17, found at http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf.

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