What Is a Bond Forfeiture?
Since medieval times, the posting of a bail bond--typically a cash or surety amount, or valued property such as a house--has been used to ensure that criminal defendants will show up to answer charges against them. The bail bonding system is the bedrock for how both sides will behave, effectively amounting to an unwritten contract between defendants and accusers. When a defendant skips his next court date to avoid reckoning with the criminal justice system, the case escalates to a bond forfeiture and triggers a barrage of negative consequences.
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History
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The concept of bail essentially grew out of British practices formalized during the 17th century. When America broke from the British Crown in 1776, the new nation outlined a different approach through the U.S. Constitution's 6th Amendment, which allows defendants to learn the charges against them and whether they are entitled to bail. The 8th Amendment, in turn, guarantees against excessive or unreasonable bail requirements. Congress revisited these standards through the Bail Reform Act of 1966, which mainly authorized judges to consider a defendant's risk of flight and danger to the community in capital cases. Otherwise, defendants in non-capital cases were presumed to have the right to bail. A further amendment in 1984 provided for the imposition of pretrial detention on a defendant found to be dangerous to the community.
Function
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Bail requirements vary greatly from state to state, with most defendants typically required to post 10 percent of the total amount. This percentage is nonrefundable and is retained by the bail bonding agent as payment for his own services. Four states--Illinois, Kentucky, Oregon and Wisconsin--do not allow any form of commercial bail bonding, preferring to impose the 10 percent requirement outright. For larger amounts, defendants may also have to post additional collateral such as properties or home mortgages. From the bonding agency's and court's standpoint, such extra requirements give defendants a powerful material incentive to appear--at least in theory.
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Effects
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No matter which arrangement prevails, failure to appear for trial or sentencing--or bail jumping--has drastic consequences for the bonding agency. The agency is responsible for the remaining amount until the defendant is found. To recover their money, bonding agencies hire a fugitive tracker, popularly known as a bounty hunter. Bonding agencies may also sue to get their costs back, which may prove unrealistic in dealing with defendants of limited means. Whenever a defendant fails to appear, the court will respond by issuing a bench warrant for his arrest. Typically, the court also sets a date for locating the fugitive, or else the full bond amount must be paid.
Warning
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Bail jumping has several negative implications for defendants when they are located. The court's first step is to revoke bond, resulting in an immediate jail confinement, and--where applicable--requires the seizure of assets or collateral. As a result, friends or family members who put up cars, homes or other personal property on a defendant's behalf may lose it to satisfy the court's original conditions. Finally, bail jumping is a separate criminal offense that may result in the imposition of additional prison time on top of the offense that provoked the defendant's flight in the first place.
Considerations
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Critics of the commercial bonding and court-based bail systems claim that the costs associated with bringing in runaway defendants is a bad public policy bargain. For example, an American Legislative Exchange Council study of cases in San Diego, San Francisco and Los Angeles suggested that defendants released on their own recognizance without any strict financial requirements were twice as likely to appear. On average, the study claimed, Los Angeles County residents footed an average of $1,273 per runaway defendant, a result that seems to suggest some drastic reforms are in order. Supporters of stiffer requirements argue that bail is a privilege, not a right, and is subject to the traditional remedies that are invoked by a defendant's failure to appear--including arrest.
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Resources
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