Freedom Bail Bonding

The word bail as a legal term means:

Security, usually a sum of money, exchanged for the release of an arrested person as a guarantee of that person's appearance for trial. As a verb, bail in this instance means to secure the release of an arrested person by providing bail.
Release from imprisonment on payment of such money. As a verb, bail in this instance means to release a person under such guarantee.
The person providing such payment.

The Eighth Amendment to the U.S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. The purpose of bail is to give an arrested person his/her freedom until he/she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over. Bail is set to assure the attendance of the defendant, when his or her appearance is required in court, whether before or after conviction. In most cases, bail money will be returned at the end of the trial, if all court appearances are made, no matter whether the person is found guilty of the crime accused. Legislatures also set out certain crimes to be "unbailable," such as capital crimes or in some cases premeditated murder.

There are two ways to pay your bail. You may either pay the full amount of the bail or buy a bail bond. A bail bond is like a check held in reserve: It represents your promise that you will appear in court when you are supposed to. You pay a bond seller (i.e. Bail Bondsman to post a bond (a certain sum of money) with the court, and the court keeps the bond in case you don’t show up.

What is a Bail Bond?

A Bail Bond is a type of surety bond used to secure the release from custody of a person charged with a criminal offense. Under such a contract, the principal is the accused, the obligee is the government, and the surety is the bail Bondsman.

Most people are familiar with Bail Bonds. Someone arrested on a criminal charge may be held until trial, unless they furnish the required bail. The posting of a Bail Bond acquired by or on behalf of the incarcerated person is one means of meeting the required bail. When a bond is issued, the bonding company guarantees that the defendant will appear in court at a given time and place. The Government entity (state or federal) in whose court the defendant must appear, is protected by the bond. If the defendant fails to appear, the bond amount becomes payable and is forfeited as a penalty by the surety insurer issuing the bond. Bail Bonds usually require collateral (cash, a deed, or other property) to protect the surety.

Bail Bonds are issued by licensed "Bail Agents" who specialize in their underwriting and issuance. Bail agents act as the appointed representatives of licensed surety insurance companies.
What is the history of Bail Bonds?

During the colonial period, Americans relied upon the existing bail structure that had evolved in

England

over several hundreds of years. However in 1776, when the colonists declared their independence, they no longer depended on English law, rather they set down policies which closely corresponded to English tradition.

In medieval

England

, processes to ensure that the accused would appear for trial began as early as the trials themselves. It wasn't until the 13th century that the Sheriffs were allowed to determine when a defendant could be detained for trial and when he could be released with a guarantee or a promise that he would return to stand trial. Unfortunately, the sovereign authority held by Sheriffs was not always equitably disseminated throughout each region. As a result, the Statute of Westminister was established in 1275, and eliminated the discretion of sheriffs with respect to which crimes were and were not bail-able. According to the San Francisco News and the San Francisco Chronicle, the first modern Bail Bonds business in the United States, the system by which a person pays a percentage to a professional Bondsman 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.

In some countries, including the U.S., granting bail is common. In others, depending upon the court and the accusations, bail is not always available. Countries without bail imprison the suspect before the trial only if deemed necessary. And, in some countries outside of the United States (such as England and Wales), bail simply refers to the release of the accused before trial.
Forms of bail

The form of bail varies from jurisdiction, but the common forms of bail include:

1. Recognizance
2. Surety
3. Citation Release
4. Property bond
5. Orders of Protection
6. Cash
7. Combinations

1. Recognizance - a promise made by the accused to the court that he/she will attend all required judicial proceedings and will not engage in further illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless it is forfeited by the court; this is denominated an unsecured appearance bond.

In British and American law, the term recognizance is usually employed to describe an obligation of record, entered into before some court or magistrate duly authorized, whereby the party bound acknowledges (recognizes) that he owes a personal debt to the government. This debt is generally subject to a condition that the obligation to pay shall be avoided if he shall do some particular act, as if he shall appear at the assizes, keep the peace, or the like.

Recognizance is most often encountered regarding bail in criminal cases. By filing a bail bond with the court, the defendants will usually be released from imprisonment pending a trial or appeal. If no bail has been set, the defendants are released "on their own recognizance." For more on recognizance, see Wikipedia

2. Surety - when a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail Bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount whether the defendant appears in court or not. The court in many jurisdictions, especially jurisdictions that prohibit bail Bondsmen, may demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail Bondsmen, is returned if the defendant does not violate the conditions of bail.

In most common law jurisdictions, a contract of suretyship is subject to the statute of frauds (or its equivalent local laws) and is only enforceable if memorialized by a writing signed by the surety. If the surety is required to pay or perform due to the principal's failure to do so, the law will usually give the surety a right of subrogation, allowing him to recover the cost to him of making payment or performance on the principal's behalf, even in the absence of an express agreement to that effect between the surety and the principal.

The act of becoming a surety is also called a guaranty. Traditionally a guaranty was distinguished from a surety in that the surety's liability was joint and primary with the principal, whereas the guaranty's liability was ancillary and derivative, but many jurisdictions have abolished this distinction.

In the United States, Under Article 3 of the Uniform Commercial Code, a person who signs a negotiable instrument as a surety is termed an accommodation party; such a party may be able to assert defenses to the enforcement of an instrument not available to the maker of the instrument.

A surety bond is a contract between at least three parties: (i) the principal, (ii) the obligee, and (iii) the surety. Through this agreement, the surety agrees to make the obligee whole (usually by payment of money) if the principal defaults in its performance of its promise to the obligee. The contract is formed so as to induce the obligee to contract with the principal, i.e., to demonstrate the credibility of the principal.

Suretyship Bonds originated hundreds of years ago as a mechanism through which trade over long distance could be encouraged. They are frequently used in the construction industry: in order to obtain a contract to build the project, the general contractor (and often the sub-contractors as well) must provide the owner a bond for its performance of the terms of the contract. Conversely, owners and contractors may also provide payment Bonds to ensure that subcontractors and suppliers are paid for work done. Under the Miller Act, payment and performance Bonds are required for general contractors on all U.S. federal government construction projects where the contract price exceeds $100,000.00.

Surety Bonds are also used in other situations, for example, to secure the proper performance of fiduciary duties by persons in positions of private or public trust.

A key term in nearly every surety bond is the penal sum. This is a specified amount of money which is the maximum amount that the surety will be required to pay in the event of the principal's default. This allows the surety to assess the risk involved in giving the bond; the premium charged is determined accordingly.

If the principal defaults and the surety turns out to be insolvent, the purpose of the bond is rendered nugatory. Thus, the surety on a bond is usually an insurance company whose solvency is verified by private audit, governmental regulation, or both.

The principal will pay a premium (usually annually) in exchange for the bonding company's financial strength to extend surety credit. In the event of a claim, the surety will investigate it. If it turns out to be a valid claim, the surety will pay it and then turn to the principal for reimbursement of the amount paid on the claim and any legal fees incurred.

3. Citation Release - This procedure, known as the "Cite Out," involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date.

The Cite Out usually occurs immediately after an individual is arrested. As a consequence of the failure to follow complete booking procedures, the true identity and background of most individuals released on citation is never established. This results in the release of numerous arrestees who may have outstanding bench warrants pending or who may present a significant danger to society.

Accordingly, in these cases involving Cite Outs, the arrestee may never be placed in custody, and like the own recognizance release, such an arrestee's appearance in court depends exclusively upon the integrity of the alleged felon and his or her voluntarily returning to court.

In this case, an arrestee may be "released on conditions." Here, many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.

4. Property bond - In rare cases an individual may obtain release from custody by means of posting a property bond with the court. Here the court records a lien on property, to secure the bail amount. If the arrestee subsequently fails to appear at the scheduled court date, the court may institute foreclosure proceedings against the property to obtain the forfeited bail amount.

5. Orders of Protection - one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.

6. Cash - to be released on cash bail, an individual must post with the court the total amount of the bail, in cash, to secure his or her return to court on an appointed date, and thereafter until the case is concluded. Full cash Bonds provide a powerful incentive for defendants to appear at trial. If the defendant shows up for his/her scheduled court appearances, the cash is returned to him/her. If s/he fails to appear, the cash bond is forfeited to the court.

7. Combinations - courts often allow defendants to post cash bail or bond, and then impose further conditions, as mentioned above, in order to protect the community or ensure attendance.
Bail may be forfeited, and the defendant remanded to jail, for failure to appear when required.

Your rights to bail
Under current law, a defendant has the right to bail unless there is sufficient reason not to grant it. The main reasons for refusing bail according to the Bail Act 1976 are that there are substantial grounds for believing that the defendant (1) will flee; (2) will commit further offences while on bail; or (3) will interfere with witnesses. Conditions may be applied to the grant of bail, such as living at a particular address or, rarely, paying an amount into court or having someone act as surety. Release on bail is sometimes referred to as "police bail," where the release was by the police rather than by a court. The alternative to being granted bail is being remanded into custody (also called being "held on remand").

State bail laws
Bail laws vary somewhat from state to state, as is typical of U.S. jurisprudence. Generally, a person charged with a non-capital crime is presumptively entitled to be granted bail. Recently, some states have enacted statutes modeled on federal law which permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.

Be certain on bail bond co-signing
The act of co-signing involves a promise to pay another person's debt arising out of contract if that person fails to do so. Many realtors and landlords require a cosigner for college students, people with bad credit or people whose income is less than a certain, low multiple of the amount of rent. Other loans typically involving a cosigner are motor vehicle purchase money loans and mortgages. The statute of frauds existing in most states of the United States requires that any such agreement be in writing and signed by the co-signer in order to be enforceable in a court of law. A cosigner is also known as a surety. The legal act or instrument of cosigning is also called a guaranty. What should you know as a co-signer, or bail bond indemnitor?
It is the responsibility of the indemnitor (co-signer) to see that the premium is paid. A bail bond is an appearance bond and is good for one year. If the case continues longer than a year, and additional premium is due and is collected for each additional year.

These premiums are not refundable and upon the release of the defendant are fully earned. Any expenses incurred in the transaction of a bail bond, such as long distance calls, travel, or posting fees are to be paid by the indemnitor to the bail agent. Most additional expenses we incur. It is the responsibility of the defendant or indemnitor to supply accurate information.

What happens if the defendant does not appear?
The defendant is obligated by the bail agreement to appear at each and every court appearance required by the court. The failure to do so will result in the forfeiture of the bond. Failure to act immediately can add up expense, such as tracing fees, court costs, and attorney fees if legal action is taken. The indemnitor is liable. The law provides that the associated expenses can not exceed the face amount of the bond. (California Regular Code Title 10 Section 2081(d).

At what point is the co-signer no longer liable for the bond?
The co-signer is no longer liable for the defendant's bond when he/she completes all of their court appearances and all premiums have been paid. It is best to contact the agent when the bond is exonerated by the court. This allows the fast return of any collateral pledged and also confirms that the bond is exonerated. In the event of forfeiture, the indemnitor is liable until the full amount of the bail has been paid, plus any expenses incurred or until the court exonerates the bond, which then becomes void.

A Bail Bondsman is any person or corporation that will act as a surety and pledge money or property as bail for the appearance of a criminal defendant 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 Bondsmen, on the other hand, are usually in the business to cater exclusively to criminal defendants, often securing their customers' release in just a few hours.

Bail Bondsmen are almost exclusively found in the United States, as in most other countries bail is usually more modest, and the practice of bounty hunting is illegal.

Bondsmen usually 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 Bondsman is responsible does not appear. The Bondsman usually has an arrangement with a 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.

Bondsmen generally charge a fee of 10% of the total amount of the bail required in order to post a bond for the amount. This fee is not refundable and represents the Bondsman's compensation for his or her services. As the practice of paying a 10% cash premium for a bond became widespread, 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 Bondsman.

For large bail amounts, Bondsmen 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 Bondsman 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 Bondsman 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. The Bondsman is also allowed to sue the defendant for any money forfeited to the court should the defendant fail to appear.

In most jurisdictions, Bondsmen have to be licensed to carry on business within the state. Several unusual organizations often provide bail Bonds. For example, AAA (formerly the American Automobile Association) offers a bail bond service to its members who are jailed for ordinary traffic offenses to prevent law enforcement officials from threatening lengthy remand periods before trial if the alleged offender does not plead guilty at arraignment.

Four U.S. 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.