bail bond

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Bail Bond

A written promise signed by a defendant or a surety (one who promises to act in place of another) to pay an amount fixed by a court should the defendant named in the document fail to appear in court for the designated criminal proceeding at the date and time specified.

A bail bond is one method used to obtain the release of a defendant awaiting trial upon criminal charges from the custody of law enforcement officials. The defendant, the defendant's family and friends, or a professional bail bond agent (or bail agent) executes a document that promises to forfeit the sum of money determined by the court to be commensurate with the gravity of the alleged offense if the defendant fails to return for the trial date.

Most defendants are financially unable to post their own bail, so they seek help from a bail agent, who, for a nonrefundable fee of 10 to 20 percent of the amount of the bail, posts bail. A bail agent becomes liable to the court for the full amount of bail if the defendant fails to appear for the court date. Before agreeing to assume the risk of posting bail, the bail agent requires collateral from the defendant, such as jewelry, Securities, or written guaranties by creditworthy friends or relatives of the defendant. This collateral acts as security to ensure repayment for any losses the bail agent might incur. If the defendant appears to be a "poor risk," and unlikely to return to court for trial, the bail agent will refuse to post bail. A defendant who has a record of steady employment, has resided in the community for a reasonable length of time, and has no prior criminal record is considered to be a good risk.

The bail agent, the defendant, or another interested party posts bail in the form of the bail bond at the court where the defendant is required to return for the proceeding. The court clerk issues a bail ticket or similar document, which is sent to the police to notify them that bail has been met. The defendant is released from custody when the bail ticket is received by the police. Liability under the bail bond ends when the defendant fulfills the conditions of the bond by appearing in court on the specified date, or if the terms of the bond become impossible to execute, such as by the death of the defendant or by his or her arrest, detention, or imprisonment on another offense in the same or different jurisdiction.

If a defendant fails to appear for trial on the date specified in the bail bond, the court will issue a warrant for the defendant's arrest for "jumping bail," and the amount of the bond will be forfeited to the court. The bail agent is generally authorized by statute to arrest the defendant and bring him or her back for criminal proceedings.

Kentucky, Illinois, Wisconsin, Nebraska, and Oregon have enacted laws making it illegal to post bail for profit, thereby outlawing the occupation of bail bond agent.

A bail bond may be similarly used in cases of civil arrest to prevent a defendant from fleeing a jurisdiction to avoid litigation or fraudulently concealing or disposing of assets in order to become judgment proof (incapable of satisfying an award made against him or her if the plaintiff is successful).

Further readings

Berand, Laura, and Jean Montoya. 2002. Criminal Litigation in Action. Notre Dame, Ind.: National Institute for Trial Advocacy.

Marcus, Paul. 2003. Criminal Procedure in Practice. Notre Dame, Ind.: National Institute for Trial Advocacy.

Simmons, Don, Jr. 2002."Making a Living Off Making Bail." Roanoke Times & World News.


Asset; Collateral; Judgment Proof.

bail bond

n. a bond provided by an insurance company through a bail bondsman acting as agent for the company, to secure the release from jail of an accused defendant pending trial. Usually there is a charge of 10 percent of the amount of the bond (e.g. $100 for a $1,000 bond) and often the defendant must put up some collateral like a second deed of trust or mortgage on one's house. Upon acquittal, conviction, or other conclusion of the case, the bail bond is "exonerated" and returned to the insurance company. If the person who has been bailed out disappears and does not appear in court, the bond funds will be forfeit unless the defendant is found and returned. (See: bail, bail bondsman)

bail bond

a document in which a prisoner and one or more sureties guarantee that the prisoner will attend the court hearing of the charges against him if he is released on BAIL.

BAIL BOND, practice, contracts. A specialty by which the defendant and other persons, usually not less than two, though the sheriff may take only one, become bound to the sheriff in a penalty equal to that for which bail is demanded, conditioned for the due appearance of such defendant to the legal process therein described, and by which the sheriff has been commanded to arrest him. It is only where the defendant is arrested or in the custody of the sheriff, under other than final process, that the sheriff can take such bond. On this bond being tendered to him, which he is compelled to take if the sureties are good, he must discharge the defendant. Stat. 23 H. VI. c. 9.
     2. With some exceptions, as for example, where the defendant surrenders; 5 T. R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326; nothing can be a performance of the condition of the bail bond, but putting in bail to the action. 5 Burr. 2683.
     3. The plaintiff has a right to demand from the sheriff an assignment of such bond, so that he may sue it for his own benefit. 4 Ann. c. 16, Sec. 20; Wats. on Sheriff, 99; 1 Sell. Pr. 126, 174. For the general requisites of a bail bond, see 1 T. R. 422; 2 T. R. 569 15 East. 320; 2 Wils. 69; 6 T. R. 702; 9 East, 55; . D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore, R. 264 East, 568; Hurls. on Bonds, 56; U. S. Dig. Bail V.

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