Vail Law: Here’s an examination of the way bail and bonds work (column)
October 30, 2018
Bond. James Bond.
Well, not exactly.
First, what exactly is a bond?
It depends. Context is everything. There are investment bonds, construction bonds, bond-bonds (OK, I cheated there a little) and bail bonds which are the flavor we are after for this column, although, admittedly, a bond-bond — pardon the spelling — is much yummier.
In any event …
A bond in the criminal setting is a promise. More precisely, it is a written promise signed by the defendant or a surety to pay an amount fixed by a court if — oops — the defendant fails to appear in court for a designated criminal proceeding at the date and time specified. If you've ever heard the expression "jumping bail," that's it — the failure of a defendant to show up for court after a bond has been posted which, by the way, is a rather serious no-no.
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For those of you keeping your eye on the bouncing bail bond, a "surety" is one who promises to act in place of another. This does not mean that if the defendant fails to show up for court, the surety will go to the pokey in his or her place. A surety should not be confused with a surrogate. Nope. Instead, the surety is only the guarantor of payment or performance if another fails to pay or perform.
Although sureties live in the world of bonding things other than a criminally accused's promise to show up (for example, a surety may insure a construction bond required in a building contract), in the context of bail bonds, the surety puts up the dough (for a fee, of course) and if the defendant fails to show, the surety's money is forfeited in satisfaction of the defendant's failure to perform his/her promise. If the court demands payment of the bond and the defendant cannot be found, the obligation falls, instead, upon the surety.
This is a risky business to be sure.
About bounty hunters …
As a quick aside, when you hear of "bounty hunters," on whose behalf they are often hunting is a surety or bail bond agent to find and bring in the accused who has jumped bail and, in so doing, has stuck the surety with forfeit of the bond.
A bail bond is employed to obtain the release of a defendant awaiting trial upon criminal charges from the custody of law enforcement officials. In the proper circumstance, paying the bail bond is a "get out of jail" card — at least until the trial takes place.
The defendant, the defendant's family and friends or a professional bail bond 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.
A little extrapolation as to the preceding sentence may be in order. First, "execute" in this milieu has nothing whatsoever to do with a capital offense. Instead, it is just fancy legal talk that means "to sign." Second, it is worth noting that the bail set by the court is high or low or in the Goldilocks zone and is "just right," depending upon how serious the court determines the offense to be and also in consideration of the likelihood that the defendant may fly the coop and not show his or her pretty face again.
At times, an alleged crime is so offensive to society and/or the risk of flight is so significant that the court will cross its arms and deny a request that bond will be set. In such circumstance, the defendant must simply enjoy the hospitality of the local constabulary until the matter comes to trial. If there is the slightest silver lining to marking time in jail, however (other than presumably protecting society from your further malfeasance), if the accused is at last convicted, he or she will get "time served" counted against his/her sentence for the time spent twiddling his/her thumbs in jail.
Many defendants are financially unable to post their own bail, so they seek help from a bail agent, who, for a nonrefundable fee (most commonly, 10 to 20 percent of the amount of the bail), posts bail. You can think of the bail agent's fee as the origination fee on a loan. If the defendant shows up and the bail is one day returned, the bail agent keeps the percentage fee. If the bail is forfeited, the bail agent will seek to enforce reimbursement of the principal amount from the accused to whom he or she has lent the money.
As 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 usually 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.
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. Thus the bounty hunting aspect of the matter.
One last thing: Besides a bond, the court may (and usually does) impose other bond conditions. They often include: no consumption of alcohol or possession or consumption of drugs, removal of all firearms from the defendant's residence and a strict no-contact order between the defendant and the alleged victim(s).
Bond. James Bond? Nah, but bails and bonds do serve and streamline the administration of justice.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.