The Nuts and Bolts of Bonds & Bonding
Conversations of how to bail someone out of jail usually occur at the most inopportune times (the wee hours of the morning on Saturdays and Sundays are common) because, I think we can all agree, that there is never a good time to be arrested, booked and taken to jail. But what is bail? How does it work? What are common conditions that people who are on bond, the defendant, must abide by? This article will address these topics and will hopefully clarify these issues for the reader so that they have a better understanding of the issues that commonly occur when bonding issues arise.
The first question that generally arises is what is bond and why is it necessary. Bond is the financial undertaking to obtain the release of an individual who is in law enforcement’s custody by guaranteeing that the individual will appear for all his or her court appearances. This guarantee is usually made by posting a sum of money (the amount is usually determined by a judge), or by pledging property (often real estate, car titles, etc.) of certain value to insure that an individual will appear in court. The advantage is that an individual does not languish in jail waiting for his/her case to progress. The disadvantage is, of course, that if the defendant fails to appear at a scheduled court appearance or fails to comply with the conditions of their bond then the bond is revoked and the person is returned to custody and the money or property that was pledged is forfeited. The purpose of bond is not to punish the defendant but rather to insure that he/she will appear in court. Additionally, with some types of crimes a court will impose additional requirements other than just the posting of money or property. In these instances the conditions imposed may be to protect the community or the alleged victim of the crime from further harm or harassment. Typically, bond requirements prohibit the person on bond from consuming alcohol, possessing firearms, leaving the state without the Court’s permission, from having any contact with the alleged victim and may also require the defendant to submit to drug or alcohol testing.
The next question that needs to be addressed is how is bond determined and how can it be posted. Bond is usually determined when the defendant is brought before a judge, who is informed by the prosecutor what the allegations against the person are and other relevant information. The judge then sets the bond amount and conditions. Some types of crimes have bond schedules, or presumed levels of bond, that vary by the magnitude of the alleged crime. For example, the bond schedule for a class two misdemeanor in a certain county might be $1500.00. Therefore, if you are defendant of a class two misdemeanor in that county, then your bond is presumed to be $1500.00. These schedules are merely suggestions, however, and often bonds are set higher if the prosecutor requests that they be set higher.
Why would a bond be set higher for one person than for another person that is accused of the same offense? Because every case is fact and offender specific. There is always the opportunity for variances in the amount of bond set that recognizes these specific facts. For example, if the defendant has a history of failing to appear for court (FTA) then the prosecutor will no doubt bring this to the attention of the judge so that bond can be increased making the financial forfeiture greater in the event of the defendant later fails to appear. Additionally, if the defendant has ever had to be extradited from one state to another as a result of being a fugitive, bond will be substantially higher. Another factor that can affect a person’s bond is their ties to the community where the offense takes place.
As a former prosecutor in a ski town jurisdiction, I was repeatedly confronted with cases involving defendants who were in Colorado merely because they were on vacation and thus had no ties to our county or even the state of Colorado. The temptation for people to bond out, leave the state to return to their homes – never to return – was high and, as a result, we would typically seek bonds that were higher than bond schedule in order to give people the incentive to return for court (or sometimes to compel the person to resolve the issue immediately before returning to their home state).
Bonds are sometimes higher for people with substantial criminal histories with the mindset of the court being that you are more likely to be facing some sort of incarceration due to the lengthy “rap sheet”. It is common for people to avoid court if they know they are going to be doing some jail or prison time and courts tend to acknowledge this trend by setting bonds higher for these situations. Sometimes a high bond is the result of a desire to protect the named victim of a crime: this is often seen in crimes where domestic violence is alleged. The court may see that keeping the defendant in jail is the only way to keep him/her away from the victim and thus insure their safety. This is especially true where the allegations of violence are serious or the defendant has a history of violating the restraining orders put in place to protect the victim.
Once bond has been established, the task at hand becomes how to post bond. There are generally two ways in which this can be accomplished:
The first is that the defendant can post the entire amount of the bond in either cash or property (sometimes people put homes and vehicles up as collateral). This option has its advantages and disadvantages. The advantage is that upon the completion of the case (by dismissal, plea agreement or conviction) the property is returned to the defendant. The disadvantages are several. First, often people are unable to come up with large sums of money to post bond in this way. Second, the property pledged must be owned free and clear without any liens or encumbrances (i.e., mortgages or other security interests). In the current economy, it is becoming increasingly difficult to find assets that are completely debt or lien free that can be pledged as collateral for this type of bond. The other disadvantage to this option is that, in the event that the defendant fails to appear for a court appearance, the property is forfeited. Many years ago a family member of a defendant that I had some dealings with lost their home that had been pledged as collateral when the defendant went on the run and fled the state. This is a very harsh result, but something that must always be considered when pledging collateral for a friend or family member’s bond.
The other option is to employ a bondsperson to post the bond for the defendant. A bondsperson is a professional that will post the bond for an individual in exchange for a bond premium. Bondspersons can be found via referral (I do not provided referrals due to a bad experience in the past), through advertisement or other avenues (i.e., internet and websites). Bondspersons are not allowed to solicit clients in the courtrooms, so you generally need to have some outside party (i.e., friends or family) make bonding arrangements while you are in custody. This is generally accomplished during your phone call after being processed into custody (booking). The bond premium is usually a percentage of the bond (often in the 10-15% range) and is not refundable regardless of how the case resolves. For example, if a bondsperson was employed to post a bond of $5000.00 and they charged a bond premium of 10% then the bondsperson would charge $500 in premium. Bond premiums are how bondspersons make their money. This premium is not returned to the defendant even if the case is later resolved or even dismissed. This option is attractive to many people as it is economical. In the above example, it allows someone with a $5000.00 bond to bond out for $500.00. If a Bondsperson is used, the Bondsperson may impose additional conditions upon the defendant during the time that they are on the bond. Some requirements typically include providing very detailed and specific information about employment and residence. Additionally, a defendant that is traveling may be required to provide specific itineraries (out of state travel requires permission from both the court and the bondsperson). Additionally, because the Bondsperson is personally liable for the bond in the event of a failure to appear, they will often pursue individuals that have skipped out on bonds that they have posted (as they are liable for the amount posted if the defendant is not returned).
Things that you should consider when hiring a bondsperson include: Make sure you are dealing with a licensed bail agent and ask to see the bail agent's license and identification before you enter into any bond transaction. Make sure that you receive an itemized receipt for all charges that you incur for his/her services and ask for copies of all signed contracts and agreements. It is also important that you remember that bondspersons are providing a service to you and, as such, they should be available to answer questions or concerns that you may have after bond has been posted. Because of the nature of being in custody the defendant will often have questions after they are released on bond. Both bondspersons and your attorney are good resources to make sure that you completely understand the process and what comes next. I always tell my clients that one of my duties as an attorney is to provide my clients with information so that the decisions that they can make are informed decisions.
In the event that a defendant on bond fails to appear for a court appearance, generally a warrant will issue for the defendant ‘s arrest. Often in these situations, if counsel representing the defendant appears in court on their behalf at the scheduled time, the judge will stay (suspend) the warrant upon motion of counsel until the end of the day. But, if the defendant does not show up, the warrant be will issued. When the defendant finally does turn up, a new bond must be posted. The new bond is often at least double the previous bond and it is not uncommon for a judge to order a “cash only” bond (which will preclude the bondsperson from posting a new bond).
What happens if the person cannot make bond because it is too high? Usually, if a person is unable to post a bond he/she will remain in custody until their case is resolved but Colorado affords the defendant the right to file a motion to reduce the bond. Generally, these motions require giving notice to the district attorney that he/she is seeking a reduction in bond. The court then will hear testimony at a bond reduction hearing (usually no sooner than 5 days after the defendant’s motion is submitted to the court) as to why the defendant is unable to make the bond as it is currently set. Generally, the defendant should also make the court aware of what bond amount the defendant would be able to make. I have also had good luck in these type of situations having family members and friends of the defendant present that can speak to the judge to assure him/her they will ensure that the defendant will be present at all his/her court dates. Judges can often be persuaded to lower the bond if they feel that the defendant has a stable support system of responsible friends, family or even employers that will stand in support of the defendant. There are no absolutes in this area, of course, as the underlying facts of the charges are often very determinative of whether bond will be lowered. Obviously, the more aggravating factors that are present (drugs and alcohol, extreme violence or other outrageous behavior), the less likely that a judge will be inclined to reduce bond.
In closing, it is important when trying to anticipate bond to remember that bond is a means of ensuring that the defendant will attend all of their court appearances. With that in mind, it is always good practice to give the judge and prosecutor as many assurances possible that the person charged realizes the importance of attendance and that attendance will be the top priority until the conclusion of the proceeding.
The information provided above is general in nature, is not intended as legal advise for your particular situation and should not be relied upon without first consulting with legal counsel. The firm provides legal representation in criminal matters in the Denver Colorado metro area and will tailor its services to your particular needs and unique circumstances.
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