How Bail Bonds Work

The legal process moves quickly in the first hours following an arrest, with critical hearings on whether to post bail and secure the defendant’s release. Knowing how bail amounts are set and how bail bonds operate can help you navigate the process with confidence and avoid costly mistakes. For legal guidance, consult with a criminal defense lawyer as soon as possible.

What Is Bail?

Bail is an amount of money set by court order to secure the defendant’s appearance at future court dates. Assignment of bail is not meant to be a punishment or a fine.

The Bail Reform Act governs pretrial release and detention. It directs courts to use the “least restrictive” means to assure the defendant appears for future hearings. The act also further defines Eighth Amendment protections against excessive bail and fines.

Factors in Setting Bail

Initial bail amounts are decided at a first-appearance hearing or arraignment. Judges can consider multiple factors when setting bail, including:

• The seriousness of the alleged crime
• The weight of the evidence against the defendant
• The defendant’s criminal history
• Whether the defendant is a flight risk
• Whether the defendant poses a danger to victims or the public

Possible Bail Outcomes

Depending on the judge’s findings during the bail hearing, several outcomes are possible.

Defendant Is Released on Their Own Recognizance

The person charged with a crime is released to go home while they wait for trial without having to make a monetary payment.

Typically, those who qualify for this outcome have strong community ties, regular employment, a clean criminal record, and the crime is a minor or nonviolent offense.

Assignment of a Cash Bail Amount

Another possible outcome is the assignment of a cash bail amount. The defendant pays the full bail amount to the court. If they make all required court appearances, the money is returned. If they fail to do so, the money is forfeited.

For many criminal charges, a set bail amount is outlined in the state’s statutes. For serious crimes, a judge has discretion to set the bail amount. However, judges must be careful when setting high bail to not violate the Eighth Amendment.

If the defendant cannot afford the bail amount, they will work with a bail bond agent who will provide the bail amount on their behalf. This process works the same, with the defendant being required to attend all court hearings. If they fail to do so, the bail bond agent will pay the entire bond and then seek payment from the defendant.

Additional Conditions on Bail

Sometimes the judge will combine bail with additional release conditions. They could require the defendant to wear a GPS tracker, submit to drug testing, refrain from traveling outside the area, or comply with pretrial supervision.

Denial of Bail

In some situations, the defendant may be denied bail or pretrial release. This occurs when there is no reasonable way to ensure the defendant’s appearance at hearings and maintain public safety.

Typically, this happens with serious offenses and repeat violent offenders. The accused will be held in the county jail until the criminal case is heard in court.

What Is a Bail Bond?

When a court sets bail and someone cannot pay in full, a bail bond allows release by shifting financial risk to a licensed agent. A bail bond is a legally binding guarantee posted on behalf of a defendant, ensuring their appearance in court for their scheduled case.

This type of arrangement is called a surety agreement. Without a bail bond option, many defendants wouldn’t be able to pay their bail in full. This would result in them remaining in jail until their trial.

What Is Collateral?

When the total amount of the bail bond is significant, the bail bond company may require collateral. This is property or assets pledged to secure a bail bond.

Typically, it’s someone’s home, vehicle, or other valuable. It serves as a guarantee that the defendant will meet the obligations of the bond. If the defendant fails to appear or violates the bond conditions, the court may forfeit the bond (meaning the full bail amount becomes payable).

The agent is then liable for the amount. Collateral provides a source of recovery for the agent. The collateral also serves as motivation for the defendant to comply with their court responsibilities. Otherwise, they risk losing the collateral pledged.

How To Get a Bail Bond

After the court sets the amount of bail, the defendant or a family member will contact a bail agent who will evaluate criminal charges and the defendant’s background. If the defendant or their family agrees to the terms, they will pay the non-refundable premium for the agent’s service. Many states regulate bail bond premiums with a cap on the amount.

Once the agent receives payment, they execute the surety bond and post it with the court or jail. The court will acknowledge the bond and authorize the defendant’s release. After being released on bond, the defendant must attend all required court appearances and comply with any conditions of release. The agent may also impose conditions or monitor compliance to protect their own risk.

If the defendant fails to appear, the court may declare the bond forfeited. The agent may then pay the full bail amount to the court or surrender the defendant, depending on state law. The agent will also typically seek to recoup losses from the defendant, co-signer, and collateral.

Once the defendant’s case resolves (plea, dismissal, or trial) and the court discharges the bail requirement, the bond is exonerated, and the agent’s or indemnitor’s obligations end. Collateral may then be returned.

How To Find a Bail Bond Agent

Locating a trustworthy, licensed bail bond agent is a key step in securing their release. Choosing the right agent helps ensure lawful, transparent service and protection of your interests.

The majority of states regulate bail bondsmen. This includes maintaining a public database of licensed agents. Defendants and their families can search a state’s licensing website to verify a bondsman. It’s also a good idea to check for any disciplinary actions.

Ask your attorney or the public defender’s office for agents they have worked with or trust. In states where the commercial bail bond industry is prohibited or limited, there may be no bond agent. Instead, pretrial services or a court-run bail schedule handles release.

What Happens if You Skip Bail?

Missing a court date is a serious issue and should be avoided at all costs. When a defendant doesn’t appear, courts and prosecutors take several steps, including a bench warrant for the defendant’s arrest.

A bench warrant authorizes law enforcement to arrest the defendant and bring them to court. Depending on local rules, the warrant may include a bond amount. Failing to appear when released on federal bond can be prosecuted in itself. Penalties depend on the severity of the underlying crime.

Failure to attend court appearances can make future pretrial release more difficult or restrictive. Defendants may face additional hold times after future arrests. Prosecutors may also be more reluctant to negotiate a plea deal.

Impact of Skipping Bail on Co-Signers

If a defendant skips bail, their bail co-signer will feel the financial consequences. The bail company can sue for the unpaid bail amount, seize pledged collateral, place liens, or otherwise collect under the indemnity contract.

The co-singer’s collateral can be seized or sold by the bail company to satisfy the forfeiture judgment. If collateral is a real estate lien, the bondsman may file a foreclosure action. Beyond losing collateral, co-signers may face civil money judgments, wage garnishment, liens on property, or negative impacts on credit.

Getting Your Collateral Back

Collateral is returned after the bondsman’s liability ends. This typically happens when the court discharges the bond. Some states require the collateral to be returned within a specific amount of time. Idaho requires the collateral to be returned within 14 days of notice from the court.

Get the name and contact information of the person who will handle the collateral release and ask for a written receipt of collateral when it was given and when it is returned.

Some federal and local courts will not release collateral without an express on-the-record exoneration. Clerks often instruct counsel to file a motion or stipulation when the record lacks such language.

Possible Deductions on the Collateral

If the defendant fails to appear or violates the terms of their bond, collateral may be partially or wholly forfeited. If the person providing collateral still owes unpaid premiums or fees, the bond agent may hold the collateral until the full bail amount is paid.

The return of collateral can also be delayed due to administrative processes. For example, liens on real estate or vehicles would need to be released. Releasing a lien can take days or even weeks to process.

If the court has entered a forfeiture judgment, collateral will be held pending resolution. If forfeiture is confirmed, collateral may be applied to satisfy the judgment. Bondsmen may withhold collateral until the outstanding charges owed are paid.

Consulting with a Criminal Defense Lawyer

Whether pursuing a bail bond or paying your own way out of jail, the first call should be to a criminal defense attorney. They’ll be able to recommend reputable bail bond agents and guide you through the entire legal process.