Bail bondsman

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A bail bondsman located outside of the New York City Criminal Court in Manhattan, New York City Bail Bonds - Manhattan (48129008206).jpg
A bail bondsman located outside of the New York City Criminal Court in Manhattan, New York City

A bail bondsman, 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 a defendant in court.

Contents

Bail bond agents are almost exclusively found in the United States because the practice of bail bonding is illegal in most other countries. [1] [2] The industry is represented by various trade associations with the Professional Bail Agents of the United States and the American Bail Coalition forming an umbrella group for bail agents and surety companies and the National Association of Fugitive Recovery Agents representing the bounty hunting industry.[ citation needed ] Organizations that represent the legal profession, including the American Bar Association and the National District Attorneys Association, oppose the practice of bond dealing by claiming that it discriminates against poor and middle-class defendants while doing nothing for public safety. [3]

History

The first modern bail bonds business in the United States was established by Peter P. McDonough in San Francisco in 1898. [4] However, clay tablets from ca. 2750 BC describe surety bail bond agreements made in the Akkadian city of Eshnunna, located in modern-day Iraq. [5]

Bondsmen obtain the release of defendants from jail by paying sums of currency and pledging, sometimes with their own property as collateral, that said defendant(s) will show up for court. [6]

Modern practice

According to 1996 figures for the U.S., one quarter of all released felony defendants fail to appear at trial, but those released via surety bond appear more frequently than other defendants. [7]

Laws governing the practice of bail bonds vary by state, [8] although the Uniform Criminal Extradition Act, sponsored by the Uniform Law Commission, has been widely adopted. [8] In the state of California, bail bond agreements[ vague ] must be verified and certified by the California Department of Insurance. [9] The practice of commercial bail bonds is unlawful in the states of Illinois, Kentucky, Oregon, and Wisconsin. [10]

Applicable federal laws include the Excessive Bail Clause of the Eighth Amendment and the Bail Reform Act of 1984, [11] incorporated into the Comprehensive Crime Control Act of 1984.[ citation needed ]

Training and requirements

"There are 18 states where theoretically anyone can become a bail recovery agent..." [1] In most jurisdictions, bond agents must 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. [12]

Pricing

Bond agents generally charge a fee of 10% for a state charge and 15% for a federal charge, with a minimum of $100 in such states as Florida, required in order to post a bond for the full amount of the bail. [13] This fee is not refundable and represents the bond agent's compensation for services rendered. [14]

Nevada is one of the states which allow an arrestee to use a residence as collateral for a bail bond. To do this, the applicant must register a deed of trust and name the bonding agency as beneficiary. The agency thus gains a lien on the property, but can only take ownership if the defendant fails to comply with all court instructions and rules. [15]

In some states, such as Florida, bond agencies are responsible for paying any forfeitures, and risk being denied permission to write further bonds in the state if they fail to do so. [16]

Recovery and bounty hunting

If the defendant fails to appear in court, the bond agent must bring the defendant to the jurisdiction of the court in order to be released from further liability of the bond. A bond agent may employ a bounty hunter for that purpose. "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", requiring instead that bail bondsmen apprehend their own fugitives. Bond agents may also attempt to recover money forfeited to the court for the failure of a defendants to appear by suing indemnitors, any persons who guaranteed the defendants' appearances in court, or the defendants themselves.[ clarification needed ]

Regulation

As of 2007 four states—Illinois, Kentucky, Oregon, and Wisconsin—had completely banned commercial bail bonding, [17] usually substituting the 10% cash deposit alternative described below. Some of these states specifically allow AAA and similar organizations to continue providing bail bond services pursuant to insurance contracts or membership agreements.[ citation needed ] While not outright illegal, the practice of bail bond services has effectively ended in Massachusetts as of 2014. [18] 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] Charitable bail funds have sprung up to combat the issue of discrimination, using donations to cover the bail amount for the arrested person. [19] 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— [20] see, for example, Frank Murphy's institution of a bond department at Detroit, Michigan's Recorder's Court. [21] 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. [22]

California

In California, bail is heavily regulated by the California Penal Code, [23] [24] California Insurance Code [25] and California Code of Regulations. [26] All violations of the aforementioned constitute felony violations via California Insurance Code 1814— [27] including administrative regulatory codes such as record keeping, how solicitations are conducted, collateral and treatment of arrestees. Under California law it is a crime for a bail bondsman to solicit business at a county jail. [28] [29] [30]

Criticism

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. [31] [32] [33] [34] 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, such as Ronald Bodenheimer, and police officers. [35] [36]

The American Civil Liberties Union has criticized the practice of bail bonds 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. [37]

Alternatives

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.[ citation needed ]

Related Research Articles

Barratry is a legal term that, at common law, described a criminal offense committed by people who are overly officious in instigating or encouraging prosecution of groundless litigation, or who bring repeated or persistent acts of litigation for the purposes of profit or harassment.

An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual's property.

<span class="mw-page-title-main">Arrest</span> Law enforcement action

An arrest is the act of apprehending and taking a person into custody, usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questioned further or charged. An arrest is a procedure in a criminal justice system, sometimes it is also done after a court warrant for the arrest.

Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Court bail may be offered to secure the conditional release of a defendant with the promise to appear in court when required. In some countries, especially the United States, bail usually implies a bail bond, a deposit of money or some form of property to the court by the suspect in return for the release from pre-trial detention. If the suspect does not return to court, the bail is forfeited and the suspect may be charged with the crime of failure to appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded.

<span class="mw-page-title-main">Bounty hunter</span> Person who catches fugitives for a monetary reward

A bounty hunter is a private agent working for a bail bondsman who captures fugitives or criminals for a commission or bounty. The occupation, officially known as a bail enforcement agent or fugitive recovery agent, has traditionally operated outside the legal constraints that govern police officers and other agents of the state. This is because a bail agreement between a defendant and a bail bondsman is essentially a civil contract that is incumbent upon the bondsman to enforce. Since they are not police officers, bounty hunters are exposed to legal liabilities from which agents of the state are protected as these immunities enable police to perform their functions effectively without fear of lawsuits. Everyday citizens approached by a bounty hunter are neither required to answer their questions nor allowed to be detained. Bounty hunters are typically independent contractors paid a commission of the total bail amount that is owed by the fugitive; they provide their own professional liability insurance and only get paid if they are able to find the "skip" and bring them in.

In finance, a surety, surety bond, or guaranty involves a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults. Usually, a surety bond or surety is a promise by a surety or guarantor to pay one party a certain amount if a second party fails to meet some obligation, such as fulfilling the terms of a contract. The surety bond protects the obligee against losses resulting from the principal's failure to meet the obligation. The person or company providing the promise is also known as a "surety" or as a "guarantor".

In Canadian law, a peace bond is an order from a criminal court that requires a person to keep the peace and be on good behaviour for a period of time. This essentially means that the person who signs a peace bond must not be charged with any additional criminal offences during its duration. Peace bonds often have other conditions as well, such as not having any weapons or staying away from a particular person or place. Peace bonds are similar to a civil court restraining order, and are also based on the lesser burden of proof of civil law.

A supersedeas bond, also known as a defendant's appeal bond, is a type of surety bond that a court requires from an appellant who wants to delay payment of a judgment until an appeal is over.

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Peter P. McDonough was a crime boss, bail bondsman, and saloon owner in San Francisco, in partnership with his brother Tom. The McDonough brothers were a wealthy and influential force in San Francisco, dominating much of the underworld from 1910 to 1941. Together, they were called the "King of the Tenderloin," and the "McDonough Brothers".

Taylor v. Taintor, 83 U.S. 366 (1872), was a United States Supreme Court case. It is commonly credited as having decided that a person to whom a suspect is remanded, such as a bail bondsman, has sweeping rights to recover the suspect.

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A parole bond is a deposit of money or property made to the government as a guarantee that a paroled prisoner will comply with the terms of their release. The bond may be funded by the prisoner themselves, or they may borrow from friends or family; or provided by a bondsman in exchange for a fee.

Pretrial services programs are procedures in the United States to prepare cases for trial in court. In most jurisdictions pretrial services programs operate at the county level. Six US states operate and fund pretrial services programs at the state level. The US federal courts system operates pretrial services in all 94 federal districts.

Bail in the United States refers to the practice of releasing suspects from custody before their hearing, on payment of bail, which is money or pledge of property to the court which may be refunded if suspects return to court for their trial. Bail practices in the United States vary from state to state.

Sidney Leonard Jaffe was an American-born Canadian businessman who was kidnapped from outside his Toronto home in 1981 by American bounty hunters Timm Johnsen and Daniel Kear and transported to Florida after failing to appear for a trial there on charges of land sales fraud. His conviction on the fraud charges was overturned on appeal; his conviction on an additional charge of failure to appear for trial was upheld, but he was paroled after two years and returned to Canada. At the request of the Canadian government, Jaffe declined to appear at a new Florida trial on further land fraud charges in 1985. Johnsen and Kear were extradited to Canada and convicted of kidnapping in 1986, but were set free pending appeal, and their sentences were reduced to time served in 1989, after which they returned to the United States. The Jaffe incident caused significant tensions in Canada–United States relations, and resulted in a 1988 exchange of letters between the two countries on cross-border kidnappings.

In re Kenneth Humphrey was a case decided by the California Supreme Court concerning whether it is a violation of due process and equal protection to imprison defendants prior to trial solely because they cannot afford to pay bail.

Tal Alexander and Oren Alexander are Israeli-American real estate agents focusing on the New York and Miami ultra-luxury markets. They founded the Alexander Team at Douglas Elliman Real Estate in 2012. In 2019, the brothers co-represented the buyer in the most expensive residential home transaction ever in the United States. In December 2024, the brothers were arrested on numerous charges involving sex trafficking, sexual assault and drugging women.

<span class="mw-page-title-main">Decarceration in the United States</span> Overview article

Decarceration in the United States involves government policies and community campaigns aimed at reducing the number of people held in custody or custodial supervision. Decarceration, the opposite of incarceration, also entails reducing the rate of imprisonment at the federal, state and municipal level. As of 2019, the US was home to 5% of the global population but 25% of its prisoners. Until the COVID-19 pandemic, the U.S. possessed the world's highest incarceration rate: 655 inmates for every 100,000 people, enough inmates to equal the populations of Philadelphia or Houston. The COVID-19 pandemic has reinvigorated the discussion surrounding decarceration as the spread of the virus poses a threat to the health of those incarcerated in prisons and detention centers where the ability to properly socially distance is limited. As a result of the push for decarceration in the wake of the pandemic, as of 2022, the incarceration rate in the United States declined to 505 per 100,000, resulting in the United States no longer having the highest incarceration rate in the world, but still remaining in the top five.

A bail fund is an organization, often charitable, community and volunteer-driven, or both, that collects money for the purpose of posting monetary bail for those in jail on pre-trial detention. Recipients may include those who cannot afford bail on their own or those who are in jail due to being arrested while protesting. Community bail funds determine their own criteria for eligibility and amount of bail that they will support. As of 2024, there are over 90 community bail funds around the United States represented in the National Bail Fund Network.

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. ↑ Liptak, Adam (2008-01-29). "Illegal Globally, Bail for Profit Remains in U.S." The New York Times. Retrieved 2018-08-25.
  4. ↑ Barnes, Meritt. "Corruption Central: Peter P. McDonough". Foundsf. San Francisco, California: Shaping San Francisco. Retrieved 2018-12-13.
  5. ↑ Morgan, Willis D. "The History and Economics of Suretyship." Cornell Law Review, 12.2, February 1927, p. 153
  6. ↑ 2014 Florida Law Enforcement Handbook Miami-Date Police Department (PDF). Board of County Commissioners, Miami-Dade County, Florida. 2014. p. 15. ISBN   978-0-7698-9076-0 . Retrieved 15 November 2023.
  7. ↑ Eric Helland and Alexander Tabarrok. "The Fugitive: Evidence on Public versus Private Law Enforcement from Bail Jumping." The Journal of Law & Economics, Vol. 47, No. 1. pp. 93-122 (April 2004). doi : 10.1086/378694. pp. 93, 96, 102–118. Retrieved 29 September 2023.
  8. 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.
  9. ↑ "Bail Agent". Insurance.ca.gov. Retrieved 2012-06-17.
  10. ↑ Illegal Globally, Bail for Profit Remains in U.S., Adam Liptak, 29Jan2008, The New York Times
  11. ↑ 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.
  12. ↑ "Hidden Benefits of Car Insurance". National Association of Mutual Insurance Companies. 28 February 2001. Retrieved 10 July 2017.[ permanent dead link ]
  13. ↑ "How Much Does Bail Cost". AboutBail. Lawgical. Retrieved 10 July 2017.
  14. ↑ "Moving Beyond Money: A Primer on Bail Reform" (PDF). Criminal Justice Policy Program. Harvard Law School. October 2016. Retrieved 10 July 2017.
  15. ↑ "NRS 697.320. Collateral". Nevada Revised Statutes. Nevada State Legislature. Retrieved 10 July 2017.
  16. ↑ "Chapter 648 - 2011 Florida Statutes".
  17. ↑ "Pretrial Release of Felony Defendants in State Courts" (PDF). U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. November 2007. Archived from the original (PDF) on 2012-11-04. Retrieved 2012-08-15.
  18. ↑ Contrada, Fred (25 March 2014). "Bail bondsmen are a thing of the past in Massachusetts". MassLive. Retrieved 11 July 2017.
  19. ↑ Santo, Alysia (23 August 2016). "Bail Reformers Aren't Waiting for Bail Reform". The Marshall Project. Retrieved 13 April 2018.
  20. ↑ Ian Ayres (30 January 2008). "Can Bail Bond Dealers Reduce Discrimination? A Guest Post". The New York Times.
  21. ↑ Maveal, Gary (March 2000). "Michigan Lawyers in History—Justice Frank Murphy, Michigan's Leading Citizen". Michigan Bar Journal. 79 (3). State Bar of Michigan. Retrieved 2012-06-17.
  22. ↑ "Bail Burden Keeps U.S. Jails Stuffed With Inmates". National Public Radio.
  23. ↑ "Codes Display Text". leginfo.legislature.ca.gov. Retrieved 2020-05-09.
  24. ↑ "Codes Display Text". leginfo.legislature.ca.gov. Retrieved 2020-05-09.
  25. ↑ "Codes Display Text". leginfo.legislature.ca.gov. Retrieved 2020-05-09.
  26. ↑ "Browse - California Code of Regulations". govt.westlaw.com. Retrieved 2020-05-09.
  27. ↑ "Law section". leginfo.legislature.ca.gov. Retrieved 2020-05-09.
  28. ↑ "People v Dolezal" . Retrieved 2017-05-11.
  29. ↑ "California Department of Insurance". www.insurance.ca.gov. Retrieved 2015-09-17.
  30. ↑ "California statewide email notice" (PDF).
  31. ↑ "Woman Suing Bail Bondsman Accused Of Raping Her". Archived from the original on 2011-05-11.
  32. ↑ "Bail bondsman accused of defrauding government appears in court". Baltimore Sun. March 26, 2010.
  33. ↑ "Bail Bondsman Accused of Kidnapping Client". Archived from the original on April 4, 2012.
  34. ↑ "Bail Bondsman Accused of Embezzling Funds From a Client". Archived from the original on 2014-02-02.
  35. ↑ "Operation Wrinkled Robe".
  36. ↑ "What was Operation Wrinkled Robe? FBI investigated in Jefferson Parish for 9 years". Archived from the original on September 18, 2024.
  37. ↑ "$elling Off Our Freedom" (PDF).

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