Commercial Bail Bonds Provide a History of Success
Pre-trial release has a lengthy history that dates back before the 13th century in England. Methods were used prior to the 13th century to ensure that criminals would appear in court, however, it was not until right around the time of the 13th century that the bail bonds process was introduced. In the United States, bail bonds were the result of the English statutes and policies in the early colonial days. However, after the declaration of independence in 1776 and the Revolution, Americans no longer wanted to rely solely on English law for their legal processes. Instead, they drew inspiration from the English bail bonds process, yet they made bail bonds in the United States somewhat different. The early distinctions of bail laws in America appeared in Virginia’s Constitution, stating that, “excessive bail ought not to be required…but if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail.” These early quotes show that the bail bonds systems in place in the United States sought to protect first and foremost the interest of its citizens, but it also sought to protect the rights of defendants as well. Bail clauses were eventually added into the United States Constitution in the Bill of Rights. As time passed, the debates over bail waged on, and the bail bonds process took much criticism from numerous foes.
Bail bonds, however, still exist, and they provide exemplary services for both the protection of society and preservation of rights. Various reform acts have been enacted to add minor changes to the bail process or to clarify the existing bail processes. Indeed, the process of bail bonds has continued to create a tumultuous situation for the legal system. Opponents of the system argue in favor of the rights of defendants who should be allowed release on their own recognizance. That was one such argument that was considered under the Manhattan Bail Project, which proved that criminals or defendants could be given the responsibility of reappearing in court without financial obligations. Though release on own recognizance has been instituted and is a form of pre-trial release used for some cases, the efficacy of recognizance is still lacking. The incentives for reappearing in court under recognizance release are virtually non-existent for a guilty party, so therefore it is obvious why so many recognizance release fail to appear in court.
To understand why commercial bail bonds offer efficiency and incentives, we must first explore the process behind bail bonds. When a defendant is released from custody, they must sign a contractual agreement stating that they will return to court, or they will forfeit a sum designated by the court. The designated sum generally corresponds to the severity of the crime committed. Since most defendants cannot afford to forfeit such a sum, they enlist the services of a surety or bail bondsman. The surety signs the pledge for the defendant, stating that they are ultimately responsible for bringing the defendant to their trial. This means that the bail bondsman will forfeit the full sum should the defendant fail to show up in court. A bail bondsman operates privately, and they utilize the financial standing of a surety company. The surety company allows the bail bondsman to use their credit for an appearance bond in exchange for a small fee. In turn, the bail bondsman charges their clients a rate of 10-20% of the bail amount in addition to collateral.
It is not difficult to see why bail bonds provide more incentives. Obviously, the criminals or defendants have incentives to show up in court. They have already paid a sum of money to the bondsman, however, if they do not show up, the collateral may be seized by the bondsman. For many of these defendants, property is used as collateral, and they would not want to risk having their personal property seized by a bondsman. Moreover, if defendants do fail to show up in court, bounty hunters will track them down and re-arrest them. Bounty hunters may not require warrants for searching and re-arresting, and they are extremely proficient at bringing criminals to trial. The incentives for the bail bondsman are clear as well. Obviously, the bail bondsman does not want to forfeit the entire bail sum to the court, and that is why they employ bounty hunters.
In addition to the above incentives, a recent report entitled, “Pretrial Release of Felony Defendants in State Courts,” provides statistics to show the differences in failure to appear rates between recognizance release and surety bonds. The article declares, “Compared to release on recognizance, defendants on financial release were more likely to make all scheduled court appearances.” A brief examination of pretrial misconduct provides insight for those still questioning recognizance release. According to the statistics, of the 34% released on recognizance, an alarming 26% failed to show up in court. However, of the 29% released on surety bonds, only 18% failed to appear in court. This states that at least 8% more offenders failed to show up in court under recognizance release. Moreover, 8% of all recognizance releases went on to become fugitives. Only 3% of surety bond releases went on to become fugitives.
While protecting the rights of defendants is important, one must also grasp the importance of protecting the safety of citizens. Bail bonds are privately operated, which not only protect citizens, but it saves tax dollars as well. Bail bondsman use their own bounty hunters, which saves time and money for police precincts and bureaus, who would otherwise be burdened with re-apprehending these bail jumpers. Moreover, bail bonds, because of their efficacy, prevent jail overcrowding, which also saves money for taxpayers. Bail bonds, as mentioned above, offer greater incentives for both parties, while still preserving the freedom of the defendants or offenders. Clearly, bail bonds have triumphed and will continue to triumph over recognizance releases.
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Great article, very interesting. As someone involved in the bail bond industry over the last few years, it’s really good to have insight into it’s rich history.