Can You Explain the Difference between Posting Bail and Bond?

We’re sure that, as a reader of this blog, you know that bail and bond both refer to the monies which are required for a criminal defendant to be temporarily released. You’re probably also already aware that this money ensures that the defendant returns on the date that the courts have decided that he or she must appear in front of a judge, for their case to be tried.

But the two terms can’t be used interchangeably.

Bail is the specific amount which a criminal defendant must raise to secure his or her temporary release until the date that he or she has been ordered to appear in court, either to be judged by a jury of his or her peers –if there is a chance of incarceration for more than six months– or to have a judge decide his or her fate.

The concept of bail was indeed devised to ensure that the defendant would re-appear on the court appointed date. If he or she fails to show up, the amount paid for bail is forfeited.

When Do Bonds Comes Into Play?

In some cases, defendants are not able to either raise monies from their own capital means, or through the financial intercession of family members or loved ones. Anticipating such circumstances, our system of law allows bond monies to be borrowed for this purpose. In such a case, the defendant is allowed to enter into an agreement with a bail bond company, which usually arranges to loan the monies at a 10% fee. The usual procedure is for the defendant to put up collateral. This is an acceptable means to secure the defendant’s temporary freedom.

The bondsperson usually remits a portion of the bail monies and enters into an agreement with the court whereby it is promised that, if the defendant fails to show, the rest of the monies will be paid to the court.

This satisfies what the courts sought to establish with bail in the first place, which is to ensure that the defendant shows up for his or her appointed hearing.

What Happens if the Defendant Fails to Show?

If the criminal defendant does not appear in court as commanded, he or she will legally lose their posted collateral—usually a house or a car. Understandably, it’s not reported to be a common occurrence.

Isn’t There a Way for the Defendant To Avoid Having to Pay the 10% Fee?

Yes, in some cases, depending on the area, there is a way that the fee can be avoided. A few states have adopted laws which make it possible for the accused to post his or her own property bail, by posting their own collateral directly with the courts and not through a bond company.

Aren’t There Any Exceptions?

As a matter of fact, there are. Special cases, when so approved by the courts, are allowed to post signature bonds—to basically sign for their own release. In such cases, said defendant promises to pay a certain amount of money if he or she does not appear in court on their appointed date.

The defendant will, of course, be expected to ante up the funds if they are a no-show. However, for the most part, the low-level offenders who are eligible for signature bonds do honor their promise.

What’s the Procedure in Standard Bail Posting?

OK, let’s backtrack to when bail is first set. The bail hearing usually occurs after the booking process. As per the court’s directive, either the entire amount or a percentage is required to be paid to the court. Forms of payment which are usually accepted are cash, money order or a cashier’s check.

After that, the court prepares and issues a Court Order, which allows the defendant to be released, pending trial.

If there is a third party who pays the bail, that party –the “surety”–enters into a contract with the court (along with the defendant).

In Addition To Forfeiting The Bail Money, If the Defendant Fails to Show, What Are the Penalties?

In cases where the defendant does not show up on the scheduled court date, a Failure to Appear charge is issued, and he or she may be subject to a fine, imprisonment or both.

Of course, there are bonafide cases of unavoidable circumstances which may cause the inability to appear, and these valid reasons will be taken into consideration if the defendant does his or her best to appear in court AS SOON AS FEASIBLE under the circumstances in question.

Does a Defendant Get A Chance to Explain, In That Case?

The defendant will be given a chance to explain, and to give his or her valid defense to the Failure to Appear charge.

When Are the Bond Monies Returned?

Once the case has been tried; all proceedings have ended and obligations have been duly met, the bond monies will be returned, although sometimes minus the cost of administrative charges.

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