Innocent until proven guilty is a familiar phrase one hears when talking about the criminal justice system, but what does it actually mean? Simply put, it means that a person cannot be sentenced to jail or prison until they are convicted. So in the meantime, what happens to them? Why do some people charged with a crime sit in jail while their case is pending, and others get to go free? Well, it generally comes down to the bail and whether they can afford to pay it. But what is bail? Is it the same thing as a bail bond?
Bail is a set amount of money that a person charged with a crime must pay to be released while their case is pending. It is decided by a judge. If they can’t pay it, they must wait in jail until their trial. A bail bond is something different. It is a surety bond that a person who can’t afford bail can get. They pay a smaller bond amount to a bail bond agent or bail bondsman, and then the agent or bondsman pays the full bail amount on their behalf.
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What Is A Bail Bond & How Do Bail Bonds Work?
The best way to understand what a bail bond is is to start with what bail is. When someone gets arrested and charged with a crime, a judge will set the amount of the bail bond. That means the judge decides how much money that person has to pay in order to be released from jail while their case is pending. Judges consider many factors and have a lot of discretion when setting the bail amount. The more serious the crime, the person’s criminal history, and whether they are a flight risk are just some of these factors that can lead to a higher bail amount.
If the charged person, otherwise known as the defendant, can afford the amount of bail, they pay it to the court, and then they get released. The bail money is a guarantee that they will appear at each and every one of their court dates while their case is ongoing because, once their case is resolved, they will get that money back from the court. But, if the defendant fails to appear at any one of their court dates, then they forfeit their bail, meaning they will not get their money back.
However, it is very often the case that the defendant can’t afford bail. Therefore, they would have to wait in jail until their case is resolved — either with a guilty plea or a trial. In order to get out, the defendant does have the option of getting a bail bond. This is also an amount of money that the defendant, or their loved ones, have to pay to get the defendant out of jail. But, the bond amount is much lower than the bail, usually only 10% of it, and is not paid to the court but to a bail bond agency or bail bondsman. Also, this bail bond is non-refundable, so even if the defendant does appear at all of their court dates, they still don’t get this money back. Once the defendant pays the bail bond, the bail bond agent or bondsman will pay the court the full bail amount for the defendant’s release. The defendant must still go to all court appearances because if they don’t, the bail bond agency or bondsman loses that money. For that reason, the bondsman or agent often also secures the rest of the bail amount in the form of collateral in case they do not appear in court.
Process For Getting A Bail Bond
The bail bond process is not an easy one. Since the defendant is in jail at the time that they need a bail bond, it is generally a defendant’s loved one or family member who secures the bail bond services for them. This person goes to the bail bond company or agency and makes a deal with the agent or bondsman on the defendant’s behalf. This involves filling out the necessary paperwork, paying the service fee, and securing the collateral. Take this hypothetical:
Jack commits the crime of armed robbery. He is arrested and charged, and the judge decides to set bail at $50,000. Jack cannot pay $50,000, so Jack remains in jail. Jack calls his mother to go to a bail bondsman for him. The bail bondsman tells Jack’s mother that he will pay Jack’s bail so that Jack can get out of jail while he is waiting for trial. In return, Jack and his mother must pay the bail bondsman 10% of the bail, so $5,000. Even that is a lot of money for Jack, so his mother put it on her credit card. This is non-refundable, so no matter what, Jack’s mother will not get that money back. Also, the bail bondsman wants Jack’s mother to put the deed to her house down as collateral for the remaining bail amount, and she agrees.
Jack is released, but he is still charged with the crime and still has to go to court. He has promised the bondsman that he will appear at all of his court dates until the case is resolved. If he does, the bail bondsman will get the $50,000 back from the court that he posted for Jack. However, if he fails to appear for even just one court date, then the $50,000 is forfeited, and the bondsman can’t collect that money. Therefore, the bondsman will take the collateral, aka Jack’s mother’s house, and use a bounty hunter to find Jack and bring him back.
What Does A Bail Bondsman/Bail Bond Agent Do?
The main job of the bail bondsman or bail bond agent is to vouch for the defendant and post the defendant’s bail. This means they would pay or promise to pay the court on the defendant’s behalf in order for the defendant to be released. In return, the defendant pays the bail bondsman or agent a percentage of the bail and promises to make all court appearances.
The bail bondsman or bond agent wants the defendant to appear so that they can get the bail amount back from the court when the case is resolved. Therefore, it is also sometimes a bail bond agent or bondsman’s job to check in on the defendant’s whereabouts and make sure they get to court.
Another job that a bail bondsman or bail bond agent does is cash in on the collateral if a defendant has failed to go to a court appearance. When the bondsman or agent posts the bail for the defendant, the defendant makes a promise that they will appear at all court dates. They must do this in order for the bondsman to get their money back. This is very risky for the bondsman or bond agent, so they also like to ensure that the defendant goes to court by securing the rest of the bail amount in some form of collateral. So, if the defendant skips bail and the bail return is forfeited, the bail bondsman or bond agent will take over the collateral as compensation.
What Happens If I Don’t Show Up For Court?
There are consequences for not showing up for court, especially if you have a bail bond. If you were able to pay the bail amount to the court, and then you miss a court date, you forfeit that money meaning it will not be returned to you once your case is resolved. However, the consequences for not appearing when you have a bail bond can be even worse because instead of it being your bail forfeiture, it is the bail bondsman or bond agent who is out of that money.
Not showing up for court means that you are now considered a fugitive, and the judge has issued a warrant for your arrest. That means that any encounter with law enforcement, such as getting pulled over for speeding, would result in being arrested and put back in jail.
Not only that, but the bail bondsman or bond agency would be out the money from the bail forfeiture if you aren’t returned to jail within a certain period of time. This means that they would then take over whatever collateral was put up as security, such as a title deed to you or your loved ones’ home or vehicle.
Finally, if you not only missed a court date but are a fugitive on the run, the bail bond agency or bondsman would use bounty hunters to find you. These are trained professionals whose job is to track down fugitives who have skipped town and bring them back to jail. Bounty hunters are usually paid a percentage of the bail amount for their services.
Is There An Alternative To A Bail Bond?
If the defendant can’t afford the bail amount, there is an alternative to getting a bail bond, or at least something to try first: a bail hearing. A bail hearing is requested by the defendant’s attorney and is scheduled by the judge typically within the first five days of the defendant’s arrest. At the hearing, a criminal defense attorney argues on the defendant’s behalf to have the judge lower the bail amount or release the defendant on their own recognizance, meaning they don’t have to pay anything for their release. This consideration is most often granted for less serious offenses or misdemeanors and first-time offenders with no criminal record.
The Bottom Line
A bail bond is a surety bond provided by a bail bond agency or bondsman to defendants who can’t afford their bail. The defendant pays a non-refundable percentage of their bail to the agency or bondsman, and in return, the agency or bondsman pays their bail. The defendant is then released with the promise to make all court appearances. If they do, the agency or bondsman gets their money back from the court. If they don’t, the agency or bondsman can cash in on the collateral, sue the defendant or hire a bounty hunter to find the defendant.
Frequently Asked Questions
Do you get your bond money back?
If you take out a bail bond, you pay a percentage of the bail amount to the bondsman or bond agent, and that is non-refundable. That means that you do not get your bond money back even if you go to all the court dates.
This is different to paying the bail amount. If you are able to afford the total bail amount, that is paid to the court, not the bail bondsman. Cash bail is refundable on the condition that you appear in court for all court dates while your case is pending.
How do bail bondsmen lose money?
Bail bondsmen lose money when defendants fail to appear for their court date. The bail bondsman paid the defendant’s bail in order for the defendant to be released from jail. The bail is only returned to the bail bondsman if the defendant is present at all court appearances. If the defendant misses even one, the bail money is forfeited, and the bondsman cannot get that money back.
How does a bail bondsman get paid?
A bail bondsman makes their money on the fee that defendants pay them for the bail bond. For example, if the bail is $100,000, the defendant would pay 10% of that, or $10,000, to the bail bondsman. That $10,000 is all profit for the bail bondsman as it is not refundable. In return, the bail bondsman pays the $100,000 bail on the defendant’s behalf and then gets that $100,000 back when the case is resolved, only if the defendant goes to all of their court appearances.
If the defendant fails to appear in court, the bail bondsman forfeits the bail, meaning they lose that $100,000 refund from the court. However, the bail bondsman also takes collateral from the defendant so that if this happens, they don’t actually suffer a financial loss.
What are the different types of bail bonds?
There are two types of bail bonds. The most common is the criminal bail bond. These are used in criminal cases to guarantee the defendant’s appearance in court and as a guarantee that the defendant will pay any fines decided against them at sentencing.
The second type is a civil bail bond. These are less common and are used as a guarantee that the defendant will pay any debts, damages, court costs, etc., assessed against them in civil cases.