Commercial Bail Bonding

The commercial bail bonding system is designed to work in the following way: To obtain release from jail through a commercial bail bondsman on a surety bail, a defendant must pay a non-refundable fee, or premium, usually ten percent of the bail amount. Bondsmen 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, although they get a “pass” if the defendant is apprehended by others. In most jurisdictions, bondsmen’s powers to do this extend beyond the authority granted to public law enforcement agencies. If the bondsman fails to return the defendant, he may be required to forfeit the entire amount of the bail. To guard against loss due to forfeiture, 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 nineteenth 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. 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 on returning defendants to court by having a built-in financial incentive to do so, commercial bail bonding offers no means of protecting the public. In fact, in a perversion of the outcome sought, bail bondsmen gain financially when their clients are rearrested on new offenses while out on bail. The rearrest, while detrimental to the community, is simply another opportunity for a bondsman to write another bail and collect another fee.

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, these constituent associations recognize the public safety risks and inherent discrimination associated with continued use.