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Bail Bonds Q&A
Want to know more about the bail bond process? Get details about what a bail bond is, the court procedure and why a bail bondsman may be needed.


1. What is an arraignment?

An arraignment is calling the defendant to the bar of the court, to answer the accusation contained in the indictment.

An arraignment is one of the lesser-understood portions of the criminal court process and is necessary to establish the identity of a defendant and to determine a plea. Each state handles criminal arraignment differently, but there are a few things that remain the same no matter where you live. The most important thing to remember is that criminal arraignment is a court appearance and should be treated as such.

When you appear in court at a criminal arraignment, you will be taken in front of a judge. You have the option to request legal counsel (lawyer) at that time, either in the form of a private attorney or as a public defender. You can also waive your right to counsel if you prefer to represent yourself, but this isn't advisable. Not only are you entering a plea, but you will also be given a bail amount.

When you first stand in front of the judge in court at a criminal arraignment, you will be asked to verify who you are. This is to ensure that there are no mistakes in the identity of a defendant and to avoid such defenses later at trial. You may be asked to provide photo identification for the court, or your word may be taken at face value.

In some states, the judge will take the time at a criminal arraignment to explain the charges against the defendant. If this is the case, he or she may also state the possible punishment, such as the maximum fine or jail sentence. In other states, the defendant is simply handed a statement that has been prepared by the prosecutor and outlines the charges and the reasons for their existence.

You will also be asked to enter a plea at criminal arraignment, which will be put on the record. It is not advisable to enter a guilty plea in court at this time because, even if you intend to plead guilty, you may be able to receive a reduced charge as a result of a plea agreement with the prosecutor. However, you do have the choice to enter a plea of guilty, not guilty or in some states, no contest.

Once you have entered a plea, your defense attorney and the prosecutor will be allowed to make recommendations as to the bail amount. The judge can do one of four things: set a surety bond to be posted by a bondsman, release the defendant on his own recognizance (PR bond) or set a 10 percent bond to be posted to the court and in some cases, deny bail entirely. In most states, remand (bail denial) is reserved only for first-degree murder charges and generally only nonviolent offenders are released on their own recognizance (ROR).

The final court business at a criminal arraignment is the scheduling of future trials and hearings. For misdemeanors and other smaller crimes, the trial date may be set at this time, and you'll be told to appear whenever the court fits you in. For felony charges, however, a preliminary hearing is usually scheduled, but not the actual trial date. The trial will not commence until after discovery, jury selection and motion hearings.

2. What is a bail bond?

A bond is executed by a defendant who has been arrested, together with other persons as sureties. Naming the court or sheriff as obligee, in a penal sum set by the judge, the defendant shall duly appear to answer to the charges as directed. Surety bonds state the money must be forfeited by the bondsman if an accused person fails to appear in court for any court appearance.

The Constitution of the United States and each state stipulate that people charged with crimes must have a reasonable access to bail, with a few important restrictions. Although bail must be reasonable, the extent of the crime, history of the accused, prior warrants and whether the accused is a "flight risk" factor greatly when a judge determines bail. A "flight risk" is a term the court uses to determine if a person released on bail will decide to "jump bail" and miss their court appearance, or whether the accused will flee to another country or district where they can no longer be prosecuted for their crime. However, if bail is granted, the accused can enter into an agreement with a bail bondsman to secure their release.

A bail bond is a contract between a person accused of a crime and a businessperson called a bail agent (bondsman). Bail agents pay the entire amount of a person's bail in return for a small fee called a premium, typically 10 percent of the bail itself. The bail agent keeps this fee once the person is released from jail. Once the person is released from jail, they agree to show up at their court appearances, but if they do not, the bail agent forfeits the amount of money they put up to secure their release. When the person "skips" bail, the bail agent can use bail enforcement agents, commonly called "bounty hunters," to track down the accused and produce them to appear at trial.

3. How is the bail amount determined?

Bail amount is generally predetermined by the Uniform Bail Schedule of each county where the alleged crime was committed or by the judge at arraignment. They take into consideration a number of factors that are specific to that area's needs and jurisdiction. This is why each county has different bail amounts for the same type of crime.

It is the intent of the Uniform Fine/Bail Schedule to provide assistance to the judge in determining the appropriate bail to be assessed in a particular case and to minimize disparity of bails imposed by different courts for similar offenses. However, as you will see, there are a number of factors which allow for the deviation from these guidelines. First, according to the 8th Amendment of the U.S. Constitution, bail shall not be punitive. This means that bail shall not be set so high as to be a punishment in itself. The purpose of bail is simply to secure the appearance of the defendant. This may mean that bail could be reduced for an indigent and raised for someone with excessive wealth.

The prime concern in setting, reducing or denying bail is "public safety." Other less important considerations are the seriousness of the offense, prior criminal record and the probability that the defendant will show up for subsequent hearings. Unlike federal law, California state law does not usually authorize preventive detention, that is, setting no bail at all. Thus, judges must usually set bail at an amount that both permits the release of the defendant and ensures public safety.

Additionally, if public safety is an issue, the court may make an inquiry where it may consider allegations of injury to the victim, threats to the victim or a witness, the use of a deadly weapon and the defendant's use or possession of controlled substances. A judge or magistrate setting bail in other than a scheduled or usual amount must state on the record the reasons and address the issue of threats made against a victim or a witness. The court must also consider evidence offered by the detained person regarding ties to the community and ability to post bond.

4. What happens if someone does not post bail?

Nothing terribly bad happens if someone is unable to post bail. In fact, it is rather common that someone will simply not have the money that is required in order to post bail. In such a situation, the person will most likely have to await his or her trial date in jail. This amount of time may last for a few days to a few weeks, depending on the court system that has to hear the case.

5. How does a bail bondsman make their money?

After you are processed, a judge or magistrate sets a bail for your crime. If you can't afford to post your own bail, let's say the bail is $10,000 -- not a very high amount, but generally indicative of something more than a simple misdemeanor. If you don't have $10,000 in cash, you get in touch with a bail bond company so that you don't have to stay in jail until the first court hearing for your case.

The bail bond company is very much like an insurance company. In this case, the company will agree to be on the hook for your entire bail, while you need only to pay a small percentage, usually 10 percent. Bail bond companies have standing relationships with various courts, and the judge trusts that the defendant will show up or the bail bond company will pay the entire amount of the bond. You are free to leave jail, with the expectation that you will return for all the court hearings in your criminal case.

In the majority of cases, about eight out of 10 according to some experts, the defendant returns to court as promised. Once the case is resolved one way or another, you never get the 10 percent back that you paid for the bail bond company. Just like car insurance you don't get your premium back if you are a safe driver. Some bail bond companies also offer financing alternatives to defendants who can't afford the 10 percent for their bail. That financing business is another way that bail bond companies earn money.
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