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).
A professional agent for an insurance company who specializes in providing bail bonds for people charged with crimes and awaiting trial in order to have them released. The offices of a bail bondsman (or woman) are usually found close to the local court house and jail, his/her advertising is found in the yellow pages, and some make "house calls" to the jail or hand out cards in court. Bail bondsmen usually charge the suspect a fee of 10 percent of the amount of the bond. If a bail bondsman has reason to believe a person he/she bailed out is about to flee, he may revoke the bond and surrender his client to jail.
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Related to bail: bail out, bail on she system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial.
In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made, and this option is called bail. Bail is set by the judge during the defendant's first appearance. For many misdemeanors, bail need not be set. For example, the defendant may be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.
The courts have several methods available for releasing defendants on bail. The judge determines which of these methods is used. One alternative is for the defendant to post a bail bond or pledge of money. The bond can be signed by a professional surety holder, the accused, or the family and friends of the accused. Signing the bail bond is a promise that the defendant will appear in the specified criminal proceeding. The defendant's failure to appear will cause the signers of the bond to pay to the court the amount designated. The amount of bail is generally an amount determined in light of the seriousness of the alleged offense.
A defendant can also be released upon her or his own recognizance, which is the defendant's written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognizance constitutes a crime.
Other conditions may also be set regarding the release of the defendant. The Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many additional conditions that do not rely upon finances and that reflected current trends to move away from financial requirements for freedom. These conditions came about, in part, owing to concerns regarding the discriminatory nature of bail toward the poor. The Bail Reform Act allows for conditional releases dependent upon such circumstances as maintaining employment, meeting curfews, and receiving medical or psychiatric treatment.
A defendant in a civil action can be arrested to ensure that he or she will appear in court to respond to the plaintiff's claims. Civil arrest prevents a defendant from leaving the jurisdiction to evade the litigation, and from attempting to conceal or dispose of assets in order to keep the plaintiff from collecting on the judgment if the plaintiff prevails. Since civil arrest is a drastic remedy, state laws must be consulted to determine when it may be used. The purpose of bail in a civil action is to ensure the presence of the defendant at trial and to guarantee the payment of a debt or the fulfillment of some civil duty, as ordered by the court.
The court sets the amount of bail, which is generally based on the probable amount of damage against the defendant. In some instances, if informed of changed circumstances, the court might increase or reduce bail. Cash, as opposed to a bail bond, may be deposited with the court only when authorized by statute. The purpose of the arrest and the statutory provisions determine whether this deposit may be used to pay the judgment awarded to the plaintiff.
The objective of bail in criminal actions is to prevent the imprisonment of the accused prior to trial while ensuring her or his appearance at trial. Constitutional and statutory rights to bail prior to conviction exist for most offenses, but state constitutional provisions and statutes must be consulted to determine the offenses to which bail applies. The Bail Reform Act of 1984 governs bail in federal offenses. It provides the federal magistrate with alternatives to the incarceration of the defendant. If the charge is a noncapital offense (an offense not punishable by death), the defendant may be released on her or his own recognizance. If there is a reasonable likelihood that the defendant will not return for trial, the judge may impose bail. The judge may also release the defendant into the custody of a designated person or organization for supervision. Restricting the residence, extent of travel, and personal associations of the accused are other options.
A court exercises its discretion with respect to the allowance of bail. In reaching its decision, it evaluates the circumstances of the particular case, including the existence of doubt as to the accused person's appearance at trial. Unreasonable delay or postponement in the proceeding, which is not attributable to the accused, usually constitutes a ground for bail—in some jurisdictions, by absolute right; more frequently, at the discretion of the court.
In jurisdictions in which it is neither proscribed nor regarded as an absolute right, the grant of bail pending a motion for a new trial, a review, or an appeal is also discretionary. The grant of bail is then determined in light of the probability of reversal, the nature of the crime, the likelihood of the defendant's escape, and the character of the defendant.
The decision to grant or deny bail is reviewable, but the scope of the review is limited to whether the court abused its discretion in its determination.
The amount of bail set is within the discretion of the court. Once fixed, it should not be modified, except for good cause. An increase cannot be authorized when the arrest warrant specifies the amount of the bail. An application for a change in bail is presented to the court by a motion based on an Affidavit (a voluntary written statement of facts) confirmed by the oath of the person making it. The affidavit must be taken before a person authorized to administer such an oath and must contain the facts justifying the change. The Eighth Amendment to the Constitution and the provisions of most state constitutions prohibit excessive bail, meaning bail in an amount greater than that necessary to ensure the defendant's appearance at trial.
The Bail Reform Act of 1984 helped to set guidelines allowing courts to consider the danger a defendant might present if released on bail. This response to the problem of crimes committed by individuals who had been released on bail marked a significant departure from earlier philosophies surrounding bail. Bail laws took on a new importance; they would ensure the appearance of the defendant in proceedings, and they would see to the safety of the community into which the defendant was released.
Pursuant to the 1984 act, if the court deems that the accused may, in fact, pose a threat to the safety of the community, the accused may be held without bail. In 1987, United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697, addressed the constitutionality of holding an individual without bail while awaiting criminal trial. The Supreme Court held that due process was not violated by the detention of individuals without bail.