Q. What is a Bail Bond?
A. When someone is arrested on a criminal charge they may be held until trial, unless they post bail. The posting of a bail bond acquired by or on behalf of the incarcerated person is one means of meeting the required bail. When a bond is issued, the bonding company guarantees that the defendant will appear in court at a given time and place. The Government entity (state or federal) in whose court the defendant must appear, is protected by the bond. If the defendant fails to appear, the bond amount becomes payable and is forfeited as a penalty by the surety insurer issuing the bond. Bail bonds usually require collateral (cash, a deed, or other property) to protect the surety. Bail bonds are issued by licensed “Bail Agents” who specialize in their underwriting and issuance. Bail agents act as the appointed representatives of licensed surety insurance companies.
Q. What is the purpose of bail?
A. The purpose of bail is to assure the attendance of the defendant when his or her appearance is required in court, whether before or after conviction.
Q. How much does a bail agent charge?
A. The cost to the consumer will be about 10% of the total amount of the bond, plus actual, necessary and reasonable expenses incurred in connection with the transaction. The court determines the amount of the bond. Each surety company must file rates with the Department of Insurance. Bail agents representing a company must charge the same, filed rates. A “Rate Chart” is required to be posted in a visible location at every bail bond office.
Q. Are there any restrictions on how high my bail can be?
A. The Eighth Amendment to the U.S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep a defendant from fleeing before a case is over.
Q. What can I do if I can’t afford to pay the bail listed on the bail schedule?
A. If you can’t afford the amount of bail on the bail schedule, you can ask a judge to lower it. Depending on the state, your request must be made either in a special bail setting hearing or when you appear in court for the first time, usually called your arraignment.
Q. How soon can I appear before a judge?
A. A person taken to jail must be brought “without unnecessary delay before the nearest available…magistrate.” In no event should more than 48 hours elapse (not counting weekends and holidays) between the time of booking and bringing you to court.
Q. How do I pay for bail?
A. There are two ways to pay your bail. You may either pay the full amount of the bail or buy a bail bond. A bail bond is like a check held in reserve: It represents your promise that you will appear in court when you are supposed to. You pay a bond seller to post a bond (a certain sum of money) with the court, and the court keeps the bond in case you don’t show up. You can usually buy a bail bond for about 10% premium you pay to a bond seller is nonrefundable. In addition, the bond seller may require “collateral.” This means that you (or the person who pays for your bail bond) must give the bond seller a financial interest in some of your valuable property. The bond seller can cash-in this interest if you fail to appear in court. As an alternative, a bond agent may be your best option. To find a bail agent, look in the Yellow Pages.
Q. Is bail a matter of right?
A. Although the right to bail has constitutional recognition in the prohibition against excessive bail, bail is not always a matter of right. However, with certain exceptions a defendant charged with a criminal offense shall be released on bail. Persons charged with capital crimes when the facts are evident or the presumption of guilt great, are excepted from the right to release on bail. However, a defendant charged with a capital crime is entitled to a bail hearing in the trial court to determine whether the facts are evident or the presumption great. A capital crime is an offense that a statute makes it potentially punishable by death or life imprisonment, even if the prosecutor/government has agreed not to seek the death penalty. It is presumed that the risk of flight of the defendant is too great when he or she is facing death or life in prison without the possibility of parole.
Q. What is the consumer agreeing to in the bail bond contract?
A. The consumer is agreeing to:
- Pay the premium for the bond at the established rates
- Provide required collateral. Pay actual, necessary and reasonable expenses incurred by the bail agent in connection with the transaction. These may include:
- Reimbursement for long distance phone calls.
- Excess travel expenses (described as outside of the bail agent’s normal scope of business, or into an area where the agent does not advertise).
- Posting fees (for payment to an agent in another area to physically deliver a bond. An agent should not charge a posting fee for the normal delivery of a bond in the agent’s advertising area).
- Bounty agent/skip tracer expenses (These are usually based upon the amount of the bond).
- Payment of the bond amount for the defendant’s failure to appear.
- Attorney fees and court costs.
- Keep the bail agent advised of address/employment changes of the defendant or other parties to the agreement.
- Aid the bail agent/skip tracers in locating the defendant (where someone other than the defendant has secured the bond).
- The consumer should read all agreements thoroughly, asking questions until all items and obligations are understood.
Q. What does the bail agent do for the consumer?
A. Provides an avenue for the incarcerated person to be out of custody until his/her day in court, allowing the defendant to continue his/her day-to-day life until the criminal matter is resolved. The bail agent will provide the following:
- Receipts and copies of all signed documents
- Information regarding the status of the bond and changes in assigned court dates
- The status of any costs due, as imposed by the court
- Assistance in locating the defendant should a forfeiture occur
- Appearance before the court regarding the bail bond when such appearances are necessary (sometimes requiring the hiring of legal counsel)
- The timely return of collateral upon exoneration of the bond
Q. How long is a bail bond good for, and can the amount be reduced?
A. Length of the contract. The bail bond runs for the length of the case that is being bonded. However, the agreement may provide for the payment of premium at inception, and upon “renewal” on an annual basis. Once paid, the premium for a bail bond is not refundable.
Reduction of Responsibility. Although not usually the case, a court may reduce the amount of bail required. If a bail reduction occurs, the bail agreement should be amended to reflect the reduced exposure of the bail agent and surety insurer. A bail reduction does not result in a refund of premium paid, although it may result in a partial return of collateral. If a bail reduction occurs, it should result in a reduced renewal premium. Under any circumstances, where a bail reduction has occurred, the bail agent and insurer cannot recover more than the amount to which they are actually exposed, plus necessary related expenses.
Q. Who decides how much bail I have to pay?
A. Judges are responsible for setting bail. Because many people want to get out of jail immediately and, depending on when you are arrested, it can take up to five days to see a judge, most jails have standard bail schedules which specify bail amounts for common crimes. You can get out of jail quickly by paying the amount set forth in the bail schedule.
Q. Is it true that a defendant who proves his reliability can get out of jail on his word alone?
A. Sometimes. This is known as releasing someone “on his own recognizance,” or “O.R.” A defendant released O.R. must simply sign a promise to show up in court. He doesn’t have to post bail. A defendant commonly requests release on his own recognizance at his first court appearance. If the judge denies the request, he then asks for low bail.
In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:
- The defendant has other family members (most likely parents, a spouse or children) living in the community
- The defendant has resided in the community for many years.
- The defendant has a job
- The defendant has little or no past criminal record or any previous criminal problems were minor and occurred many years earlier
- The defendant has been charged with previous crimes and has always appeared as required
Q. Who licenses and regulates bail agents?
A. Bail agents are licensed and regulated by the California Department of Insurance. You can obtain the licensing status of a bail agent by contacting the CDI Consumer Hotline at 1-800-927-4357 or by visiting CDI’s Web site at www.insurance.ca.gov.
Q. What if I have a problem or dispute with a bail agent, such as a failure to return collateral?
A. Contact the California Department of Insurance using the information provided in the “Talk to Us” section.