Bail Bond: Definition, How It Works With Posting Bail, the Bail Bondsman’s Role

What Is a Bail Bond?

A bail bond is an agreement by a criminal defendant to appear for trial or pay a sum of money set by the court. The bail bond is co-signed by a bail bondsman, who charges the defendant a fee in return for guaranteeing the payment.

The bail bond is a type of surety bond.

The commercial bail bond system exists only in the United States and the Philippines. In other countries, bail may entail a set of restrictions and conditions placed on criminal defendants in return for their release until their trial dates.

How a Bail Bond Works

A person who is charged with a crime is typically given a bail hearing before a judge. The amount of the bail is at the judge’s discretion. A judge may deny bail altogether or set it at an astronomical level if the defendant is charged with a violent crime or appears likely to be a flight risk.

Judges generally have wide latitude in setting bail amounts, and typical amounts vary by jurisdiction. A defendant charged with a nonviolent misdemeanor could see bail set at $500. Felony crime charges have correspondingly high bail, with $20,000 or more not uncommon.

Once the amount of the bail is set, the defendant’s choices are to:

• Remain in jail until the charges are resolved at trial
• Arrange for a bail bond
• Pay the bail amount in full until the case is resolved

In the last instance, courts in some jurisdictions accept title to a home or other collateral of value in lieu of cash.

What a Bail Bondsman Does

Bail bondsmen, also called bail bond agents, provide written agreements to criminal courts to pay the bail in full if the defendants whose appearances they have guaranteed fail to appear on their trial dates.

Bail bondsmen generally charge 10% of the bail amount upfront in return for their service and may charge additional fees. Some states have put a cap of 8% on the amount charged.

The agent may also require a statement of creditworthiness or may demand that the defendant turn over collateral in the form of property or securities. Bail bondsmen generally accept most property of value, including cars, jewelry, and houses as well as stocks and bonds.

Once the bail or bail bond is delivered, the defendant is released until trial.

Disadvantages of the Bail Bond System

The bail bond system has become part of the larger debate over mass incarceration, especially of young Black men in the U.S.

The bail bond system is considered by many even in the legal profession to be discriminatory, as it requires low-income defendants to stay in jail or scrape together a 10% cash fee and the rest of the bail in collateral—even before they stand trial for any crime. The Prison Policy Initiative reports that about 536,000 people are being held in jails in the U.S. because they cannot afford bail or a bail bondsman’s services.

Four states—Illinois, Kentucky, Oregon, and Wisconsin—have outlawed bail bondsmen and instead require a 10% deposit on the bail amount to be lodged with the court. In 2018, California voted to eliminate cash bail requirements from its court system.

Bail Bond Example

Suppose that New York resident Melissa has broken the law, and the court has set her bail at $25,000. Although Melissa doesn’t want to stay in jail while her court case is being reviewed, she doesn’t have the $25,000 in cash. As such, Melissa decides to reach out to a bail bondsman to post a bail bond.

In return for their services, the bondsman is paid 10% of the bond, or $2,500. For the remaining $22,500, the bondsman secures an equivalent amount in collateral from Melissa or someone in her family. Melissa complies with the court’s requirements and shows up to her court dates, so she receives the $22,500 in collateral back at the end of the trial—$2,500 less than what she would have received had she paid the bail herself.

The Bottom Line

A criminal defendant agrees via a bail bond to appear for trial or pay a sum of money set by the court. The bail bond, which is a type of surety bond, is co-signed by a bail bondsman, who charges the defendant a fee in return for guaranteeing the payment.

Only two countries in the world have a commercial bail bond system: the United States and the Philippines. The system, which has been outlawed in four U.S. states, is widely considered discriminatory to low-income defendants and a contributor to the mass incarceration of young Black men.