What is Bail?
Bail, guaranteed by the Eighth Amendment of the U.S. Constitution, ensures the Court that a criminal defendant will appear for trial.
hen our forefathers created the United States Constitution, their intent was to guarantee certain rights to all citizens of this country. They wanted to guarantee that the inequities foisted upon them by the English Crown would not happen again. While the English common law system allowed bail, it was generally only for those of the very upper class and even then was given at the whelm of the ruling class.
The Eighth Amendment of the United States: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
LINK TO US CONSTITUTION
How did we get commercial bail?
Like most commercial enterprises in this country, commercial bail evolved from demand. While bail was guaranteed by the Constitution, the courts still had to ensure the defendant's appearance for trial. A large portion of the original inhabitants of our country came here as indentured servants. They were from debtors’ prisons in Europe and once they had served their time working to purchase their freedom, many quickly found themselves on the other side of the law. Since they had no property and therefore no way to be released, they would contact their original “owners” who would agree to some fee of servitude to post bail for the defendant. This system slowly evolved to property owners posting bail for a monetary fee.
Taintor v Taylor was an 1873 United States Supreme Court case involving a defendant named McGuire who posted bail in Connecticut and then went to New York where he lived. While he was there, he was arrested by New York officers on a fugitive warrant and on the strength of a Governor’s warrant, he was extradited to the State of Maine on a charge of burglary. When McGuire failed to appear before the Connecticut court on the appointed day, his bail bond was forfeited. Neither of his sureties knew when they entered on the bond that there was a criminal charge against him in Maine. The Connecticut Treasurer Taintor, successfully sued to recover the amount of the bail bond and the state high court and ultimately the Supreme Court of the United States, affirmed the Judgment.
The case established the bail agent's right to arrest the accused based on the agreed upon contract between the defendant and the surety, so that the sureties… “Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner.”
Most bail agents believe the importance of the case was that it gave bail agent the ability to recover the defendant. What it really gave bail agent was the right to third-party indemnification of bail, thus legalizing commercial bail. This one case was a major break from English common law in that it allowed bail to be indemnified - the courts fearing indemnification because they thought it would allow the defendant to skip out easier.
LINK TO TAYLOR V TAINTOR
What does a bail agent do?
The popular perceptions about bail agents are that they get people out of jail strictly out of greed and without consideration for public safety. The reality is a far different affair. A bail agent is paid a premium or fee to ensure that a criminal defendant, released into the custody of the bail agent, fulfills the obligation to appear for subsequent hearings and for trial, as ordered by the court. A bail agent never releases a defendant from jail – rather they are paid to ensure the appearance of the defendant. If the bail agent fails to have the defendant in court at the proper time and place and cannot seize him and deliver him, they must pay the civil penalty in the face amount of the bail bond.
The other reality is that bail agents must live in the communities where they do business and contrary to popular belief, they do not want the wholesale release criminals. Bail agents are as susceptible to crime as their next-door neighbor. They also must face their neighbors, friends and relatives each day and if they wish for the wholesale release criminals without fulfilling their obligation, it will quickly affect their personal lives as well as the lives of their family. Contrary to what television portrays, bail agents do a good job of knowing who to bail out and who not to bail out.
- It is the bail agents’ job to ensure the defendant is in court each time he is called to do so, and to “return from term-to-term and day-to-day.”
- The bail agent may do whatever is necessary to ensure that the defendant will return to court, including taking collateral, requiring the defendant to report in by phone or in person, requiring a defendant to be monitored and even placing a guard on the defendant, if necessary to ensure their return.
- A premium on a bail bond is not considered “earned” until the defendant returns to court and the bond is exonerated or discharged.
- If the bail agent fails to return the defendant to court, he is required to either pick-up and return the defendant to jail or to pay the full face amount of the bond as a penalty for failing to produce the defendant
The commercial bail system in this country is the best form of ensuring criminal defendants are returned to court and ensuring the victims of crime their rights to justice. It is a system paid for by the perpetuators of crime, not by the taxpaying victim and is fair and equitable in guaranteeing an accused their Eighth Amendment right to bail.
How do I find a bail agent?
The quickest way is to click on the Find A Bail Agent link to be re-directed to another section of this site that will help you find a member of PBUS in your area. You may also look in your local phone book's yellow pages under bail.
Useful tips when posting bail
- Make sure you only deal with a licensed bail agent. Ask to see the bail agent's license and identification prior to any bail transaction.
- Make sure the bail agent charges you only legal rates. The premium charged for a bail bond varies from state-to-state. Additional charges above the allowed premium should be itemized and explained to your satisfaction.
- Make sure you are given itemized receipts for all charges.
- Make sure you are given copies of all signed contracts and agreements.
- If financing is provided, make sure you understand the terms of the financing agreement prior to signing and be sure you are given copies of anything you sign.
- Make sure the bail agent you contract with will be available to you after the bail bond has been posted. Part of what you pay for is this service. Any professional bail agent will be available for questions or concerns throughout the entire process.