Bail bondsman

A bail bondsman, bail bondsperson, bail bond agent or bond dealer is any person, agency 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.[1] In most other countries the practice of bounty hunting is illegal.[2] The industry is represented by various trade associations, with the American Bail Coalition forming an umbrella group in the United States.

History

The first modern bail bonds business in the U.S. was established by Peter P. McDonough in San Francisco in 1898.[3] However, clay tablets from ca. 2750 BC describe surety bail bond agreements made in the Akkadian city of Eshnunna in what is today modern Iraq.[4] 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.

Modern practice

Based on 1996 figures, one quarter of all released felony defendants fail to appear at trial, but those released via bail bond appear more frequently than other defendants.[5] Bond agents, also referred to as "bond dealers"[5] 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.[6] 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,[7] 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.[6]

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.[8] 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.

Training and requirements

"There are 18 states where theoretically anyone can become a bail recovery agent..."[1] In most jurisdictions, bond agents have to be licensed to carry on business within the state. Some insurance companies may offer insurance coverage that includes local bail bonds for traffic related arrests.[9] This provides an extra service to their members, and frees the member from needing immediate cash. Long time bail agents have said that they have never posted a bail bond through AAA, because AAA does not 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 without AAA covering their release from jail.

Pricing

A "24 hours a day" bail bonds office opposite the Contra Costa County Detention Center in Martinez, California.

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.[10] This fee is not refundable and represents the bond agents' compensation for their services.[11] 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.

In Connecticut, bail bond costs are set by the Connecticut Insurance Department. A bondsman can arrange a payment plan with a minimum 35% down payment. Any unpaid balance must be paid within 15 months from the time of bail.

Nevada bail bondsmen collect 15% and fall under some of the more strict guidelines in the nation. For example, Nevada law does not allow agents to collect renewal premiums for bonds held open for more than one year.

Nevada is one of the states which allow an arrestee to 'put up' a residence for a bail bond. To do this, the applicant needs to register a deed of trust and name the bonding agency as beneficiary. While this gives the bail company a lien on the property, they can only take ownership if the defendant fails to comply with all court instructions and rules.[12]

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.[13]

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, a deposit with the court is usually returned if the case is concluded without violation of the conditions of bail.

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 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. "Only the Philippines has a surety bail system similar in structure and function [as the US]."[1]:193 In the past, courts in Australia, India and South Africa had disciplined lawyers for professional misconduct for setting up commercial bail arrangements.[2]

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.

Alternatives and controversy

As of 2007 four states—Illinois, Kentucky, Oregon, and Wisconsin—had completely banned commercial bail bonding,[14] usually substituting the 10% cash deposit alternative described above. Some of these states specifically allow AAA and similar organizations to continue providing bail bond services pursuant to insurance contracts or membership agreements. While not outright illegal, the practice of bail bond services has effectively ended in Massachusetts as of 2014.[15] Most of the US legal establishment, including the American Bar Association and the National District Attorneys Association, dislikes the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system.[2] 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.[16] See, for example, Frank Murphy's institution of a bond department at Detroit, Michigan's Recorder's Court.[17] 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.[18]

Several high-profile cases involving bondsman misconduct have led to calls for increased regulation of the industry or outright abolition of the bail for profit industry.[19][20][21][22] 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.[23]

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 California a landmark case governing commercial free speech was decided on November 5, 2013, which upheld the conviction of Bail Bondsman Todd Russell Dolezal[24] after his felony arrest by the California Department of Insurance,[25] Investigation Division[26] for bail solicitation. Under Dolezal v. California the California Court of Appeals held that the narrowly tailored restriction on commercial speech prohibiting direct solicitation of bail at a jail passes constitutional muster.[27] The California Code of Regulations strictly regulates bail activities. This ruling prompted a statewide email notice [28] to all California licensed bail agents regarding the ruling.

The American Civil Liberties Union has criticized Bailbonds as a form of injustice against low income communities and fueling mass incarceration of innocent people with the ACLU recommending automated text messages or robocalls for court appearances[29]

See also

References

  1. 1 2 3 Johnson, Brian R., and Ruth S. Stevens. "The Regulation and Control of Bail Recovery Agents: An Exploratory Study." Criminal Justice Review 38, no. 2 (2013): 190-206.
  2. 1 2 3 Liptak, Adam (2008-01-29). "Illegal Globally, Bail for Profit Remains in U.S.". U.S. The New York Times. Retrieved 2008-01-29.
  3. ↑ Barnes, Meritt. "Corruption Central: Peter P. McDonough". FoundSF.
  4. ↑ Morgan, Willis D. "The History and Economics of Suretyship." Cornell Law Review, 12.2, February 1927, p. 153
  5. 1 2 Eric Helland and Alexander Tabarrok. "The Fugitive: Evidence on Public versus Private Law Enforcement from Bail Jumping." The Journal of Law and Economics 2004; 47(1), 93-122. DOI: 10.1086/378694
  6. 1 2 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.
  7. ↑ 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.
  8. ↑ "Bail Agent". Insurance.ca.gov. Retrieved 2012-06-17.
  9. ↑ "Hidden Benefits of Car Insurance". National Association of Mutual Insurance Comppanies. 28 February 2001. Retrieved 10 July 2017.
  10. ↑ "How Much Does Bail Cost". AboutBail. Lawgical. Retrieved 10 July 2017.
  11. ↑ "Moving Beyond Money: A Primer on Bail Reform" (PDF). Criminal Justice Policy Program. Harvard Law School. October 2016. Retrieved 10 July 2017.
  12. ↑ "NRS 697.320.  Collateral". Nevada Revised Statutes. Nevada State Legislature. Retrieved 10 July 2017.
  13. ↑ "Chapter 648 - 2011 Florida Statutes".
  14. ↑ "Pretrial Release of Felony Defendants in State Courts" (PDF). U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. November 2007. Retrieved 2012-08-15.
  15. ↑ Contrada, Fred (25 March 2014). "Bail bondsmen are a thing of the past in Massachusetts". MassLive. Retrieved 11 July 2017.
  16. ↑ Ian Ayres. "Can Bail Bond Dealers Reduce Discrimination? A Guest Post". The New York Times.
  17. ↑ Maveal, Gary (March 2000). "Michigan Lawyers in History—Justice Frank Murphy, Michigan's Leading Citizen". Michigan Bar Journal. State Bar of Michigan. 79 (3). Retrieved 2012-06-17.
  18. ↑ "Bail Burden Keeps U.S. Jails Stuffed With Inmates". National Public Radio.
  19. ↑ "Woman Suing Bail Bondsman Accused Of Raping Her". Archived from the original on 2011-05-11.
  20. ↑ "Bail bondsman accused of defrauding government appears in court". Baltimore Sun. March 26, 2010.
  21. ↑ "Bail Bondsman Accused of Kidnapping Client". Archived from the original on April 4, 2012.
  22. ↑ "Bail Bondsman Accused of Embezzling Funds From a Client". Archived from the original on 2014-02-02.
  23. ↑ "Operation Wrinkled Robe".
  24. ↑ "PEOPLE v DOLEZAL". Retrieved 2017-05-11.
  25. ↑ "California Department of Insurance". www.insurance.ca.gov. Retrieved 2015-09-17.
  26. ↑ "Investigation Division Overview". www.insurance.ca.gov. Retrieved 2015-09-17.
  27. ↑ "California Court of Appeals" (PDF).
  28. ↑ "California statewide email notice" (PDF).
  29. ↑ "$elling Off Our Freedom" (PDF).

Further reading

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