The criminal justice community typically recognizes a bail bond as a means for releasing a defendant from custody pre-trial. This assumption is correct in that a byproduct of posting bail is that the defendant is released from custody. However, the bail is posted for an entirely different purpose. In its simplest form a bail agent will act as surety in behalf of the defendant for a 10% premium based on the aggregate amount of bail set by a magistrate judge. Most people believe the bail agent is paid simply to gain the release of a loved one from custody. This could not be further from the truth. Bail is posted in order to secure the appearance of the defendant at future dates as required by the court of competent jurisdiction. Bail is accepted by the state as a financial risk pledged by the bail agent ensuring the defendant appears at each court date required until disposition. For example, a magistrate judge deems a $10,000 bond necessary to ensure the appearance at future court dates for a defendant. Should the surety deem the defendant desirable risk they may post bail for this individual. The bail agent would typically charge $1,000 premium, and require a family member to sign indemnification paperwork to guarantee the defendants appearance. The surety would then post a bail bond with the court of competent jurisdiction; in turn securing the release of the defendant pre-trial. Now that the defendant has been released the bail bond agent is financially responsible for the defendants competent fulfillment of the contract (appearance at all required court dates). If the defendant fails to appear in court the bail bond agent now has two options.
- The bail bond agent is granted 90 days post the issuance of a bench warrant to apprehend the absconded defendant. If the agent successfully places the defendant in custody upon an affidavit of surrender the surety may be relieved of their financial responsibility.
- If the bail bond agent is unable to place the absconded defendant into custody the bail bond will be forfeited. A forfeited bail bond means the bail agent must pay the state the aggregate bail amount pledged. In the example the bail agent would be responsible to pay $10,000 to the state.
If the need to post bail for a loved one should ever arise it is important to maintain the mindset that bail is not posted to get someone out of jail. Bail is posted to guarantee the state that a defendant will be present to stand trial for an accused crime. The bail agents financial pledge allows the state to ensure appearance of defendants by placing a financial risk on the bail agent. A defendant being released from custody is simply a byproduct of posting a bail bond, while the necessity of bail is found in the financial pledge of a bail agent to the state. This financial pledge ensures appearance to all court dates required until disposition, or the bail agent will forfeit the aggregate amount of bail to the state.