Bail is the means by which the U.S.criminal justice system permits the release of a defendant from custody while ensuring his appearance at all required court proceedings. Bail is the legacy of Angelo-Saxon jurispru- dence wherein defendants were delivered to their sureties, who gave secu- rity for their appearance. Bail bonds initially were put up by people who pledged their own property as security for the bond.

The commercial bond approach is by far the most effective form of bail, as demonstrated in the Bureau of Statistics study that compared commercial bonding with all other pre-trial release methods in getting defendants to court.

When a person is arrested on probable cause of having committed a criminal offense, he or she is incarcerated and booked into a detention facility. Bail is determined by a preset bail schedule or magistrate prior to arraignment. A bail agent is contacted, and he or she arranges to post the defendants bail, whereupon the defendant is released. The bail agent charges the defendant a premium (usually 10% of the bond) for assuming the risk of the defendants not appearing. If the defendant fails to appear, the court declares the bond forfeited and the bail agent, usually after getting an opportunity to recover the absconded defendant, has to pay the forfeiture, which constitutes the full amount of the bond.

Most states regard bail as a form of insurance. Hence, bail agents are licensed and regulated like any other insurance producer, subject to certain basic qualifications and pre-licensing and continuing education requirements. Most states also require bail agents to be appointed by an admitted bail insurance company. In addition, some states require that the bail agent be certified by a bail insurance company with a “qualified power of attorney,” the purpose of which is to confer limited authority on the agent to execute bonds.

Bail agents perform an extraordinarily valuable public service to law enforcement and accused people alike. The Bail Clause of the Eighth amendment to the Constitution embodies the longstanding Anglo-American tradition of favoring pretrial release of accused people. This frees up crowded jail space and permits defendants to participate more fully in their own defense. Bail agents, backed by financial resources of surety companies, make possible the pretrial release of in excess of 2 million defendants annually, at no expense to taxpayers, by providing assurances to the state that the people charged with crimes will appear as scheduled to answer charges.

(Provided by the State and Local Encyclopedia of Law Enforcement by Larry E. Sullivan, Editor-in-Chief)

Types of Bail Bonds

From Wikipedia

In the United States there are several forms of bail used, which vary from jurisdiction. “The dominant forms of release are by surety bond, i.e. release on bail that is lent to the accused by a bond dealer, and non-financial release.”^[41]:2

1. Surety Bond: By a surety bond, 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 regardless of whether the defendant appears in court. The court in many jurisdictions, especially states that as of 2012 prohibited surety bail bondsmen – Oregon, Nebraska, Wisconsin, Illinois, Kentucky and Maine^[42] – may demand a certain amount of the total bail (typically 10%) be given to the court, which is known as surety on the bond and unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond. In turn, the Bond Agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee’s return to court.^[43]
2. Recognizance (ROR): When an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in 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 the court orders it forfeited. This is called an “unsecured appearance bond” or release on one’s own recognizance.^[43]
3. Unsecured bail. This is a release without a deposit but it differs from ROR in that the defendant must pay a fee upon breaching the terms of the bail.^[44]
4. Percentage bail. The defendant deposits only a percentage of the bail’s amount (usually 10%) with the court clerk.^[44]
5. Citation Release also known as Cite Out. This procedure 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. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.^[43]
6. Property Bond – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set.^[43]
7. Immigration Bond – used when the defendant that been arrested is an illegal lmmigrant. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or the Bureau of Immigration and Custom Enforcement (ICE). The typical cost associated with this specialty bond is often fifteen to twenty percent of the original bond amount.^[45]
8. Cash – typically “cash-only,” where the only form of bail that the Court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the Court for the following reasons: when the Court believes the defendant is a flight risk, when the Court issues a warrant for unpaid fines, and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone including the defendant can post a cash bond. If the defendant posts his own bond, the Court will deduct fines and costs from the bond before returning any balance.^[46]
9. Pretrial Services – a defendant is released to the supervision of a pretrial services officer, similar to a probation officer. In most cases defendants have no financial obligation to be supervised. The Pretrial Services Programs can include phone or in-person check-ins, drug testing, court date reminders, and any other condition the judges deems necessary.
10. Combinations – courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.

• Conditions of release – 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, regular check-ins with a Pretrial Services Program, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.^{[citation needed]}
• Protective order, also called an ‘order 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.^{[citation needed]}