Criminal Law

Surety: Making Sure Court Appearances Happen

Nobody wants to sit in a jail cell. Most often, the only way to get out of jail is to put up some money to post bail. A surety is a person that posts a defendant's bail and makes sure the defendant attends court as required until the case is over. Likewise, a surety has to make sure the defendant is following any and all conditions of release.

When a Defendant Is the Surety

There are cases when a defendant posts bail by depositing cash or other assets in the full amount of the bond with the court. This is known as a cash bond and can be posted by the defendant, his family or friends. Wealthy defendants may be able to afford to post the entire bail amount. In those cases, the defendant acts as his own surety and bears the responsibility of court appearances and following other bail conditions.

For example, on a $ 50,000 bond, the defendant has to provide the court with cash or other liquid assets in that amount. If the defendant appears in court as required, then the entire bond amount will be refunded. On the other hand, if the defendant doesn't appear, the full amount is forfeited.

Another option used by the federal courts and most states allows a defendant to be released by paying ten percent of the total bond to the court. So, for a $ 50,000 bond, the defendant pays a $ 5,000 cash deposit to the court. If the defendant doesn't appear, he owes the remaining $ 45,000. If the defendant appears as required, the cash deposit is refunded.

Bail Bondsman as Surety

If a defendant can't raise the amount for bail, he or his friends or family can arrange for a bail bondsman or agent to put up the required bail. However, there are several states that prohibit obtaining a bond through a bail bondsman - Illinois, Kentucky, Oregon and Wisconsin. In those states, the bail process is handled directly through the jail or court system. 

A surety bond is an agreement, backed by an insurance company contract, between a defendant and a bail agent where the agent agrees to post bail so that the defendant can be released from jail. Before agreeing to write the bond, a bail bondsman or agent may interview the defendant and any person guaranteeing or co-signing the bond. If written, the bond may contain even tougher release conditions than those from the court because if the defendant doesn't appear, the agent is on the hook for the entire bail amount.

When a bail bondsman acts as the surety, he typically collects a non-refundable premium for writing the bond. This amount is over and above the bail amount set by the court. The premium is paid by the defendant or anyone who co-signs the bond, like friends or family. On top of that, collateral will need to be used to secure the remaining amount of the bond. Typical forms of collateral used include a home, car or boat. If a defendant doesn't appear, the bail agent will seize the collateral. Using a bail bondsman is like getting a short-term, high-interest loan.

Bounty Hunters

If a defendant skips out on bail and fails to appear, the court issues a bench warrant and forfeits bail. When that happens, the bail bondsman can hire a bounty hunter to locate the defendant. Bounty hunters are bail enforcers who typically get a percentage of the bail amount if they capture the defendant. However, bounty hunters can't try to capture a defendant who has left the US.

Laws governing bounty hunters vary from state to state. For example, Kentucky bans bounty hunters as do the states that don't allow bail bondsmen. Several states, including Florida, ban free lance bounty hunters. In other words, a fugitive defendant can only be captured by the bail agent. A number of other states, like California, require bounty hunters to be licensed in the state.

A bail bondsman plays an important role for a defendant who can't put up bail money. Bail agents are generally available at any time of day and know the process. Yes, a bail bondsman charges a premium, but a defendant's freedom is priceless.

Questions for Your Attorney

  • Can I change my mind after co-signing a bond?
  • Can an off-duty police officer act as a bounty hunter?
  • If a defendant is convicted, what happens to the bail money?

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