Why Bail Reform Matters

To obtain release from jail through a commercial bail bondsman on a surety bail, a defendant must pay a non-refundable fee, or premium, which is usually 10 percent of the bail amount. The bondsmen, who are private businessmen and women, make the decision to accept or deny bail to a defendant ruled eligible by the court.

If the defendant fails to appear for court, the bondsman is responsible for apprehending and returning the defendant to court. In most jurisdictions, bondsmen’s powers to do this extend beyond the authority granted to public law enforcement agencies (such as the ability to cross jurisdictional lines or to enter dwellings without a warrant). If the bondsman fails to return the defendant, (and the defendant isn’t apprehended by law enforcement officials) the bondsman may be required to forfeit the entire amount of the bail. To avoid losing the amount of the bail bond, the bondsman often requires the defendant or his family to post collateral equal to the full amount of the bond.

The genesis for commercial bail bonding in America came early in the 19th century when courts were attempting to balance a defendant’s right to bail with the practical reality that if a defendant wished to avoid prosecution, the wide open frontier offered an inviting opportunity to disappear. The establishment of the commercial bail bonding industry gave the court some assurance that defendants released on bail would be returned to face prosecution.

Two developments have made the commercial bail bonding system antiquated, however. First, the wide open frontiers that existed at the founding of our nation have long since disappeared. Current technology and the interface of law enforcement information systems have made it more difficult for fleeing defendants to disappear without fear of apprehension. Second, the purpose of the pretrial release decision has changed. When the bail bonding system was established, and for well over a century thereafter, the sole purpose of bail was to assure the presence of the accused in court. In the past 30 years, bail laws have been changing to add a second dimension to the bail decision – assuring the safety of the community. As an industry whose foundations are based solely on returning defendants to court by relying on financial incentives, commercial bail bonding offers no means of protecting the public. Under the commercial bail bond system, individuals known to be dangerous can be released from jail so long as they can afford the premium sought by the bondsmen.

The American Bar Association, the National Association of Pretrial Services Agencies and the National District Attorneys Association have all called for the elimination of commercial bail bonding. While the commercial bail bonding system may have played an important role in the administration of justice in this country at one point, today it creates public safety risks and discriminates against the poor.