What is Bail?
Bail is used in several distinct senses:
- Bail may mean the security – cash or bond – given for the appearance of the prisoner.
- Bail may mean the bondsman or bail agent (i.e., the person who acts as an agent for surety who guarantees the defendant’s appearance, and into whose custody the defendant is released).
As a verb, it may refer to the release of the defendant (he/she was bailed out). The first meaning is the most common and should be employed for clarity.
Admission to bail is the order of a competent court that the defendant be discharged from actual custody upon bail. The discharge on bail is accomplished by the taking of bail (i.e., the acceptance by the court or magistrate of security – either an undertaking (bail bond) or deposit (cash) – for the appearance of the defendant before a court for some part of the criminal proceeding).
Bail is evidenced by a bond or recognizance, which ordinarily becomes a record of the court. The bond is in the nature of a contract between the state on one side and the defendant and his sureties on the other. The agreement basically is that the state will release the defendant from custody the sureties will undertake that the defendant will appear at a specified time and place to answer the charge made against him. If the defendant fails to appear, the sureties become the absolute debtor of the state for the amount of the bond.
What is the Purpose of Bail?
The purpose of bail is to assure the attendance of the defendant, when his or her presence is required in court, whether before or after conviction. Bail is not a means of punishing a defendant, nor should there be a suggestion of revenue to the government. When the bail bond has served its purpose, the surety will be exonerated (i.e., released from the obligation). Exoneration normally occurs when the proceeding is terminated in some way or on the return of the defendant to custody. After conviction, the defendant appears for sentence. If sentenced to imprisonment, the defendant is committed to the custody of the sheriff, and the liability of the surety terminates.
How Does the Bail Process Work?
The process of posting a bail bond involves a contractual undertaking with the court, guaranteed by a bail agent, and the defendant posting bail. The bail agent guarantees to the court that the defendant will appear in court each and every time required by the court.
For this service, the defendant is charged a percentage, usually set by State law, of the bail amount. Before being released, the defendant and/or a relative or friend of the defendant, typically contacts a bail agent to arrange for the posting of bail. Prior to the posting of a bail bond, the defendant and a co-signer, also called an indemnitor, must guarantee that they will pay the full amount of bail, plus expenses, if the defendant does not appear at each and every court hearing.
Typically, a family member or a close friend of the defendant will co-sign to guarantee the bail bond although collateral is not always required for a person to be bailed from jail. Often a person can be bailed from jail on the signature of a friend or family member who would typically need to be working and either own or rent a home in the same area for some time as well as having an acceptable credit history.
After an agreement is reached, the bail agent meets with the co-signer(s) to execute a contract and post a bond for the amount of the bail, to guarantee the defendant’s return to court.
If the defendant fails to appear, “skips”, the bail agent is responsible to return the defendant to the custody of the court or pay the full amount of the bail however, the co-signer(s) is/are responsible to pay the bail agent prior to the bail agent paying the court.
The cosigner is responsible for all expenses for attempting to return the Fugitive (Defendant) to custody, whether successful, or not.
What is a Bail Bond Indemnitor?
A bail bond indemnitor is also sometimes referred to as the “co-signer” for the bail bond. The indemnitor is responsible to pay or make sure that all premiums, fees, and expenses are paid for a defendant’s bail bond. If the case continues for longer than a year, additional premiums will be due and must be paid for each year the case goes on. Once a Bail Bond has been executed (posted) premiums are not refundable; they are Minimum Earned Annual Premiums which means that there is no refund whether the bond is “in force” for a few minutes or for a full year. Any expense incurred in the transaction of a bail bond, such as long distance calls, travel, or posting fees are also to be paid by the indemnitor.
An indemnitor is no longer liable for the defendant’s bond when the defendant has completed all of his/her court appearances, and when all premiums have been paid and the indemnitor has provided the Bail Bond Agency with an “Order Discharging Surety From Bond” signed and sealed by a judge or a “Certificate of Discharge” signed and sealed by a court clerk.
In the event of forfeiture, the indemnitor is responsible to pay the full amount of the bail, or the defendant has been returned to custody, usually with the assistance of the indemnitor, and the court has exonerated the bond, and all incurred expenses are paid. The bond then becomes void.
Do I Get My Money Back After the Defendant Goes to Court?
When the bail bond has served its purpose, the surety (Insurance Company/Bail Bond Agency) will be exonerated (i.e., released from the obligation of the bond). Exoneration normally occurs when the proceeding is terminated in some way or on the return of the defendant to custody. After conviction, the defendant appears for sentencing. In most states, when the defendant is sentenced, the surety’s obligation terminates. You will not receive any money back that you paid to the bail agent.
What if the underlying criminal charge is dismissed?
Statutes provide for the exoneration (release) of the surety in the event of dismissal. However, there is usually a time period within which the prosecuting agency may seek to re-arrest and charge with a public offense arising out of the same act or omission upon which the action or proceeding was based. You will not receive any money back from the bail bond company.
Why Don’t I Get My Bail Bond Premium Back?
The first reason is because bail bond premiums are, just that, premiums; meaning that they are paying for a form of insurance policy somewhat like a car insurance policy. The only difference is that you are not the person receiving the direct benefit of the policy. The State of Michigan, through state courts, is the entity that benefits from the surety bond since it is the court that would receive the money if the defendant fails to go to court and cannot be returned in time to avoid payment of a forfeiture. On the other hand, the defendant directly receives a benefit, their release from incarceration, BECAUSE of the security the court has knowing that the defendant will return voluntarily, by the Bail Bond Fugitive Recovery Agent arresting and returning the defendant, or the court will receive money to pursue the defendant. So, again like other forms of insurance, if you use it for a year and the case is completed, you received the benefits it provided by the release of the defendant, you purchased the benefit. Just because the surety didn’t have to pay the court doesn’t mean that you receive your money back; if your home doesn’t burn down, the home insurance company won’t give you your money back.
The second reason is because the return of all or any portion of the premium for a contract of insurance is prohibited by insurance law. It is the same law that forbids reducing the premium rate filed with the Department of Insurance. It is called rebating and can cause the Bail Bond Agent to have their license suspended or even revoked and the same would be true for the Bail Bond Agency. This is in addition to any penalties that may be levied against you for your participation.
Why Not Just Pay the Court or Jail the Bail Amount in Cash?
The reason is simple; if you give the court the CASH up front, you are guaranteeing the court will be able to collect AT LEAST that much in fines and court costs. Check out the court records and you will probably notice that when people put up the full amount of bail in cash, the fines and costs are substantially higher than when a surety bond is used to obtain the defendant’s release. It is called setting the fines and court costs based on the “ability to pay”.
Another reason you may not want to pay the cash up front is because, depending on that particular court’s rules, your loved one may not be eligible for court appointed legal defense. The rationale is something like this; if they can come up with that much in cash, they must not need public defense! Even if your court does allow the appointment of public defense when bail is posted in cash, IF there is any money left after the increased fines and court costs, guess where the reimbursement to the county for the public defender is going to come from…. The bail money!
If you are going to pay for an attorney, at least choose the one you want and make sure they know you are the one paying them. Remember, everybody always works hardest for the one that pays them! Court appointed attorneys are paid by their employer, the county court, you only reimburse the county so you are not considered the attorney’s paying client!
Although most states’ statutes allow for you to put the bail money in your name rather than that of the defendant, most jails will try hard to discourage you from doing so, sometimes with good reason, because you may not be guaranteeing much more than the amount of money you just paid! Some jails just won’t put the receipt in your name!
A surety bail bond has a fixed premium and only guarantees the defendant’s appearance at court. It does not guarantee payment of fines and costs. That way your loved one is free to make whatever financial arrangements with the court they deem necessary and you do not become the bank for exorbitant fines, court costs and public defender fees. Your loved one only will owe you for the cost of the bail bond, their freedom!
Another BIG reason to not put up the cash with the court or jail is because most bonds set by the courts have terms and conditions other than appearance and if they are violated, the cash money can be forfeited (taken) and your only recourse will be hiring an expensive attorney to go to court, to try to get some or all of the money back. The courts cannot forfeit surety bonds to pay for the defendant failing to comply with bond conditions other than appearance in most states. If they do, you have the bail bond agency and its insurance company on your side to resolve the issue by surrendering the defendant according to state law.
When Can Bail Be Increased?
After a defendant has been released, the court in which the charge is pending may require him to give additional bail in an amount specified or to meet an additional condition upon a finding made in open court that the defendant has failed to appear; or that additional facts have been presented that were not shown at the time of the original release order, and the court may order him to commitment unless he or she gives such bail or meets such other conditions.