How Bail Works
Posting of a bail bond. This process involves a contractual undertaking guaranteed by a bail agent and the individual posting bail. The bail agent guarantees to the court that the defendant will appear in court each and every time the judge requires them to.
For this service, the defendant is charged a percentage of the bail amount. Before being released the defendant or a relative or friend of the defendant, typically contacts a bail agent to arrange for the posting of bail. Prior to the posting of a bail bond, the defendant or a co-signer must guarantee that they will pay the full amount of bail if the defendant does not appear in court.
Typically, a family member or a close friend of the defendant will post bail and cosign. Collateral is not always required for a person to be bailed from jail. Often a person can be bailed from jail on the signature of a friend or family member. Cosigners typically need to be working and either own or rent a home in the same area for some time.
After an agreement is reached, the bail agent posts a bond for the amount of the bail, to guarantee the defendant's return to court.
If the defendant "skips", the cosigner is immediately responsible for the full amount of the bail. If the defendant is located and arrested by the bail agent the cosigner is responsible for all expenses the bail agent incurs while looking for the defendant.
The five basic release options available to an arrestee are, surety bond, release on his or her own recognizance(O.R.), release on citation ("Cite Out"),property bond and cash bail.
To be released on cash bail, an individual must post with the court the total amount of the bail, in cash, to secure his or her return to court on an appointed date, and thereafter until the case is concluded. Full cash bonds provide a powerful incentive for defendants to appear at trial. If the defendant shows up for his/her scheduled court appearances, the cash is returned to him/her. If s/he fails to appear, the cash bond is forfeited to the court.
An alternative to cash bail is the posting of a surety bond. This process involves a contractual undertaking guaranteed by an admitted insurance company having adequate assets to satisfy the face value of the bond. The bail agent guarantees to the court that they will pay the bond forfeiture if a defendant fails to appear for their scheduled court appearances. The bail agent's guarantee is made through a surety company and/or by the pledge of property owned by the agent.
For this service, the defendant is charged a premium. To be released pursuant to the posting of a surety bond, the arrestee, or a relative or friend of the arrestee, typically contacts a bail agent, an individual licensed by the State of California to post surety bonds. Prior to the posting of a surety bond, the bail agent undertakes a detailed interview of the proposed guarantor of the surety bond, as well as of the arrestee and relatives of the arrestee, as part of the underwriting procedure for bond.
By involving the family and friends, as well as through the acceptance of collateral, the bail agent can be reasonably assured that an individual released on surety bond will appear at his or her appointed court date, as required until the case is adjudicated.
After this procedure is concluded, if an agreement is reached, the bail agent posts a bond for the amount of the bail, to guarantee the arrestee's return to court.
With his money on the line, a bail agent has a financial interest in supervising bailees, and ensuring that they appear for trial. If a defendant "skips," the bail agent has time and the financial incentive to find him/her and bring him/her in. Significantly, commercial bail bond agents profit only when the defendant shows up for trial. Judges acknowledge that bail agents have highly efficient methods to get defendants to court.
Own Recognizance (O.R.)
Another method of release pending trial is through a county or law enforcement administered pre-trial release program. Usually, the staff members of these programs interview individuals in custody and make recommendations to the court regarding release of these individuals on their own recognizance (i.e., without any financial security to insure the interviewee's return).
The interview process is often conducted over the telephone, with little inquiry to the individual's background to determine whether the detainee is likely to appear in court and with virtually no verification of information provided by the detainee. Since no money or bond is posted to secure the detainee's appearance in court, he or she faces no personal economic hardship from his or her conscious failure to appear.
This procedure, known as the "Cite Out," involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date.
The Cite Out usually occurs immediately after an individual is arrested. As a consequence of the failure to follow complete booking procedures, the true identity and background of most individuals released on citation is never established. This results in the release of numerous arrestees who may have outstanding bench warrants pending or who may present a significant danger to society.
Accordingly, in these cases involving Cite Outs, the arrestee may never be placed in custody, and like the own recognizance release, such an arrestee's appearance in court depends exclusively upon the integrity of the alleged felon and his or her voluntarily returning to court.
In rare cases an individual may obtain release from custody by means of posting a property bond with the court. Here the court records a lien on property, to secure the bail amount. If the arrestee subsequently fails to appear at the scheduled court date, the court may institute foreclosure proceedings against the property to obtain the forfeited bail amount.