A bail bond agent, or bondsman, is any person or corporation that will act as a surety and pledge money or property as bail for the appearance of persons accused in court. Although banks, insurance companies and other similar institutions are usually the sureties on other types of contracts (for example, to bond a contractor who is under a contractual obligation to pay for the completion of a construction project) such entities are reluctant to put their depositors' or policyholders' funds at the kind of risk involved in posting a bail bond. Bail bond agents, on the other hand, are usually in the business to cater to criminal defendants, often securing their customers' release in just a few hours.
Bail bond agents are almost exclusively found in the United States and its former commonwealth, the Philippines. In most other countries bail is usually much less and the practice of bounty hunting is illegal. The industry is represented by various trade associations, with the American Bail Coalition forming an umbrella group in the United States.
The first modern bail bonds business in the US, the system by which a person pays a percentage of the court-specified bail amount to a professional bonds agent who puts up the cash as a guarantee that the person will appear in court, was established by Tom and Peter P. McDonough in San Francisco in 1898. However, history tells us that the first surety bail bonds were agreed upon in what is today modern Iraq. Citizens were released from jail by having an indemnitor pay a sum in currency and to pledge the defendant will show up to court backed by the indemnitor's property such as his sheep. Stone carvings place these events at over 4,000 years ago.
Bond agents have a standing security agreement with local court officials, in which they agree to post an irrevocable "blanket" bond, which will pay the court if any defendant for whom the bond agent is responsible does not appear. The bond agent usually has an arrangement with an insurance company, bank or another credit provider to draw on such security, even during hours when the bank is not operating. This eliminates the need for the bondsman to deposit cash or property with the court every time a new defendant is bailed out. The laws on bail bonds are generally inconsistent throughout the United States. Federal laws affecting it include the Eighth Amendment to the United States Constitution (which contains the Excessive Bail Clause) and the Bail Reform Act of 1984, which was included in the Comprehensive Crime Control Act of 1984. The Uniform Criminal Extradition Act sponsored by the Uniform Law Commission is widely adopted.
All bail bond agents have lengthy bail bond agreements. All agreements in California are to be verified and certified by the California Department of Insurance. Most bail bond agreements are given to the bail bond agents by their insurers, and the insurers have already verified and certified all bail bond agreements for their agents.
Bond agents generally charge a fee of 10% for a state charge and 15% for a federal bail bond, with a minimum of $100 in some states like Florida, required in order to post a bond for the full amount of the bond. This fee is not refundable and represents the bond agent's compensation for their services. Some states, such as North Carolina, charge a flat 15% where other states that charge 10% can also bill the defendant for phone calls, gas, mileage, anything that has to do with the apprehension of the subject, etc. One argument for abolishing the bail bonding industry is that when a bailed defendant flees, the state does not receive the full bond amount from the bond agent but only a percentage which is often as low as 5%. This means that the bond agent makes a 5% - 10% profit at the states' expense even when the bailed defendant flees. In many locations, such as Dallas, Texas, bail bondsmen owe thousands of dollars in forfeit fees. However, in some states such as Florida, this is not the case. Bondsmen are responsible for paying the forfeitures, and if they do not pay the full amount, they can no longer write bonds in the state.
As an alternative, some courts have recently instituted a practice of accepting 10% of the bond amount in cash, for example, by requiring a $10,000 bond or $1,000 in cash. In jurisdictions where the 10% cash alternative is available, the deposit is usually returned if the case is concluded without violation of the conditions of bail. This has the effect of giving the defendant or persons giving security for the defendant a substantial incentive to make the cash deposit rather than using a bail bond agent. However, if the defendant flees, the county will only be able to keep the 10% that is on deposit. If that state had allowed bail bondsman to operate they could have collected the full amount of the bond. Furthermore, law enforcement often puts skips at low priority, but a bail bond agent would actually have an incentive to bring the skip back to the custody of the state.
For large bail amounts, bond agents can generally obtain security against the assets of the defendant or persons willing to assist the defendant. For example, for a $100,000 bond for a person who owns a home, the bond agent would charge $10,000 and take a mortgage against the house for the full penal sum of the bond.
Recovery and bounty hunting
If the defendant fails to appear in court, the bond agent is allowed by law and/or contractual arrangement to bring the defendant to the jurisdiction of the court in order to recover the money paid out under the bond, usually through the use of a bounty hunter. Some states, such as North Carolina, have outlawed the use or licensing of "bounty hunters" so each bail bondsman must re-apprehend their own fugitives. The bond agent is also allowed to sue the indemnitors, any persons who guaranteed the defendants appearance in court, and or defendant for any money forfeited to the court should the defendant fail to appear.[clarification needed]
In most jurisdictions, bond agents have to be licensed to carry on business within the state. There are some more seemingly unlikely organizations that often provide bail bonds. AAA, for instance, will often extend its auto coverage to include local bail bonds for traffic related arrests. This provides an extra service to their members, and frees the member from needing immediate cash. However, long time bail agents have said that they have never posted a bail bond through AAA. The reason being that AAA won't cover any arrest involving drugs or alcohol. AAA drivers who are stopped for traffic infractions are given tickets and those who are under the influence of drugs or alcohol are arrested and AAA doesn't cover their release from jail.
Alternatives and controversy
Four states—Illinois, Kentucky, Oregon, and Wisconsin—have completely banned commercial bail bonding, usually substituting the 10% cash deposit alternative described above. However, some of these states specifically allow AAA and similar organizations to continue providing bail bond services pursuant to insurance contracts or membership agreements.
The economically discriminatory effect of the bond system has been controversial and subject to attempts at reform since the 1910s. The market evidence indicates that judges in setting bail demanded lower probabilities of flight from minority defendants. See, for example, Frank Murphy's institution of a bond department at Detroit, Michigan's Recorder's Court. Furthermore, the economic incentives of bonding for profit make it less likely that defendants charged with minor crimes (who are assigned lower amounts of bail) will be released. This is because a bail bondsman will not find it profitable to work on matters where the percentage of profit would yield $10 or $20. As such, bail bondsmen help release people with higher amounts of bail who are also charged with higher crimes, creating an imbalance in the numbers of people charged with minor crimes (low level misdemeanors) and increasing jail expenditures for this category of crimes.
Several high-profile cases involving bondsman misconduct have led to calls for increased regulation of the industry and/or outright abolition of the bail for profit industry. One of the most prominent cases, in Louisiana, involved bribery of judges by a bail bonding agency. A far-reaching FBI investigation code-named "Operation Wrinkled Robe" led to criminal charges and removal proceedings for various judges and police officers.
In addition to the use of bail bonds, a defendant may be released under other terms. These alternatives include pretrial services programs, own recognizance or signature bond, cash bond, surety bond, property bond, and citation release. The choice of these alternatives is determined by the court.
In Louisiana, by law, the professional bailbondsman must pay the sheriff a cash amount of two-percent (2%) of the amount of the bond, which is then divided as follows:
- 1/4 to the Judges who set the amounts of the bonds [One poet has written that "The higher that the bonds are set/The more money that the Judges get." Of course, the same can be said of all four (4) of these Public Offices in Louisiana.]
- 1/4 to the Sheriff;
- 1/4 to the Indigent Defender Office
- 1/4 to the District Attorney.
- Liptak, Adam (2008-01-29). "Illegal Globally, Bail for Profit Remains in U.S.". U.S. (The New York Times). Retrieved 2008-01-29.
- Watson J, Labe LJ. (2001). "Ch. 8 Bail Bonds". In: The Law of Miscellaneous and Commercial Surety Bonds. Eds. Todd C. Kazlow, Bruce C. King.
- Keller D. (2008). Resolving a "Substantial Question": Just Who is Entitled to Bail Pending Appeal under the Bail Reform Act of 1984?. Florida Law Review.
- "Bail Agent". Insurance.ca.gov. Retrieved 2012-06-17.
- "How Much Does Bail Cost?". AboutBail.com. Retrieved 2012-08-15.
- "Bail Bondmen". Bail.net. 2012-02-18. Retrieved 2012-06-17.
- "Bail Burden Keeps U.S. Jails Stuffed With Inmates". National Public Radio.
- "Records: Dallas County owed millions in jumped bail".
- "Chapter 648 - 2011 Florida Statutes".
- "Join AAA: Members Receive Discounts & Great AAA Membership Benefits!". Aaa.com. Retrieved 2012-06-17.
- "Pretrial Release of Felony Defendants in State Courts". U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. November 2007. Retrieved 2012-08-15.
- Ian Ayres. "Can Bail Bond Dealers Reduce Discrimination? A Guest Post". The New York Times.
- Gary Maveal (March 2000). "Michigan Lawyers in History—Justice Frank Murphy, Michigan's Leading Citizen". Michigan Bar Journal 79 (3). Retrieved 2012-06-17.
- "Woman Suing Bail Bondsman Accused Of Raping Her".
- "Bail Bondsmen Charged With Lying Under Oath To Defraud Clients".
- "Bail bondsman accused of defrauding government appears in court". Baltimore Sun. March 26, 2010.
- "Bail Bondsman Accused of Kidnapping Client". Archived from the original on April 4, 2012.
- "Bail Bondsman Accused of Embezzling Funds From a Client".
- "Operation Wrinkled Robe".
- F. E. Devine, Commercial Bail Bonding: A Comparison of Common Law Alternatives (New York: Praeger, 1991) ISBN 0-275-93732-1.