Early History of Bail Bonds
Let’s start at the beginning of bail bonds. Ever since the criminal justice system was developed, two competing interests have interacted. First, the government or the governing authority has wanted a way to ensure that criminals are brought to justice in a way that protect the public. While the public itself, was worried about abuses by those in power.
See also the Illinois Criminal Law Handbook.
Both sides had legitimate worries. Criminals will avoid prosecution if they can, and there may be a record of governments conducting witch-hunts under color of law with obvious political, social and economic purposes.
The right balance needed a system that could ensure that violent individuals were detained. Also, anyone likely to flee before they could be brought to justice needed to be detained. Most other accused individuals could be released to await their trials.
To this day, if you are present for a bail bond hearing you will undoubtedly hear either the judge, the prosecutor, or the defense attorney talk about the same things. A judge setting a bail bond today wants to know about the accused’s “ties to the community”, his employment, the location of his immediate family, his gang status, any violent crimes in his history, and his overall criminal record.
The Bail Bonds System
Enter the development of the bail bonds system. In its simplest form, we can think of this system as consisting of two parts.
First, the “bail” amount is simply an amount of money that must be paid to the court in the event that the defendant does not appear in court or violates any other pre-trial bond conditions imposed by the court. See thefreedictionary.com and The History of Bail.
Second, the “bond” is the actual amount of money that an individual pays as a down payment of the bail, and includes a written promise signed by the defendant or a surety (one who accepts an obligation in behalf of the defendant) that the bail will be paid in full if defendant fails to appear.
Together, these two ideas form what we call the bail bonds system. After a Defendant pays the bond, he is released from custody. At the time of his release, the Defendant or his surety are required to sign written assurances that the defendant will return to court and abide by the other required bail bond conditions. See businessdictionary.com. Bond is usually accepted in cash only.
Commercial Bail Bonds System
One obvious problem developed. The poor are more disproportionately detained before trial because they are less likely to be able to raise their required bail bond. Commercial bail bondsmen have become available as one way for the poor to obtain their release before trial.
In this system, a private company usually signs the bond obligation with the court. In effect, the bail bonds company becomes the surety for the defendant. This means that if the accused turns into a fugitive it is the bail bonds company that is on the hook for the total bail.
The bail bondsman or his company pays the court a portion of the bail monies and guarantees that the rest of the bail will be paid if the defendant disappears. The company, backed by a separate insurance company, then pays the required “down payment” or bond to the court, usually 10% of the bail amount. The accused would then pay fees to the bail bond company at drastically reduced rates.
If everything works out and the defendant appears as required, the total bail does not actually ever get paid. Remember, a bail is just a promise or a contract with the court to pay the full amount if, and only if, the defendant stops going to court. Full bail is usually only paid when the defendant breaks his promise to appear. In this system, the bail bondsmen or the company backing the defendant, can also contract separately with the defendant’s family and friends, requiring them to put up some kind of guarantees or collateral with the bail bond company. In the event that the defendant runs, the defendant’s friends and family would lose the property they surrendered as collateral. The bail bondsman; family; and friends all have an incentive in ensuring that the defendant makes it to court.
Do I have to pay the bond amount written on my ticket?
Initially, it is the court that always sets the bail amount. However, courts can also release someone on their own personal recognizance. This just means that a person is, in essence, released on their own signature. The signature is a direct or implied agreement with the court to return to court on the next court date. Pretrial conditions can also be established. They usually are things like having no contact with the alleged victim, not drinking, or staying away from certain locations. The defendant is only liable to pay the full amount of the bail if these bail bond conditions are broken.
The majority of individuals issued a traffic citation are released on their own personal recognizance. However, it is common for a bail bond amount to be written on the ticket. This amount, because it is bail, is often in the thousands of dollars. That is not a fine nor a court cost. The dollar amount written on the ticket as a bail bond does not have to be paid, so long as the individual makes it to court. Fines and costs are assessed by the judge in court.
The Right Balance
In order for this system to work, there had to be some kind of assurances that the government would not abuse the system by raising bails to such unreasonably high amounts. Having the system in place would not protect the public if abusive government officials could not be reined in. Judges play an important role in this system. The judge is suppose to be the individual in the system checking an abusive prosecution. The judge is authorized to deny bail to dangerous individuals or those likely to flee. The judge can lower bail amounts when it appears that there is no flight risk or danger to the community.
Enter the Eighth Amendment to the Constitution which provided an additional level of criminal procedural protection:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” See Cornell University Law School.
The bail bonds system is only intended to ensure the likelihood that an accused individual shows up to his or her court proceedings. It is not designed as a collections process for criminal defense attorneys nor designed as a system to collect court fines.
One would then expect that an individual who has made all their court appearances would be returned any actual bail money that was paid. It doesn’t always work out that way. The bail bondsmen will collect non-refundable fees for his trouble and in most instances the law allows the courts to apply any posted bond to fines and court costs. The bail bonds system is not perfect. Some non-violent individuals with absolutely no incentive to run still get detained for minor crimes. The strongest advocate in these situations is then going to be an ethical bail bonds professional or an attorney.