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
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.
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 10-15% of the total amount of the bail, with a minimum of $100 in some states like Florida, required in order to post a bond for the amount. This fee is not refundable and represents the bond agent's compensation for his or her 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.
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.
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 his 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.
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.
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. In 2011, Massachusetts disallowed surety bail bonding for cash only bonds.
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.
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 that 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 crime.
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.
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