Step 4 – Bonding Out – An Explanation of the Bond/Bail Process
Once an individual is arrested on filed charges, the individual will be held in jail until his or her first court appearance. However, most warrants for arrest will include a bond amount and bond conditions. An individual can post bond, also known as bail, and be released to wait for their first court date. A bond is a peculiar agreement between the Court, defendant, and possibly a third party. Thus, it is important to understand exactly what a bond is and does.
Bonds And Posting Bond
A bond is essentially a contract with the Court to attend all future court dates. The arrangement is very similar to a contract with a pawn shop. In a basic pawn agreement, a person places property in the hands of the pawn dealer in exchange for a short-term loan. Fail to pay the loan, and the pawned property is lost; that is how the pawn dealer ensures the debt will be paid. Bonding out of custody is very similar. The defendant is making a promise that she will appear for her court dates going forward, and the loan is “secured” by a payment of cash or through a bonding agent’s guarantee of payment. The Court holds this money until the final disposition of the criminal case or when the court orders the bond money released. In some cases, the Court can take certain costs from this amount before refunding it, including court costs, fines, or fees.
A bonding agent is a recognized individual or company that can agree to assume your potential liability for failing to attend court dates. Rather than paying the cash to the court, the agent is hired and signs a guarantee to pay a set amount should the defendant fail to appear in court. In lieu of making this payment, the agent can locate and bring the defendant back to jail in a process known as surrendering the bond.
Occasionally after arrest a defendant can be release on a “no cost” bond. These bonds are known as personal recognizance/PR bonds or in some jurisdictions own recognizance/OR bonds. They function just as regular bonds do, with the defendant promising to attend all future court dates in exchange for release. The difference is that no “collateral” is put up by the defendant. Instead, the defendant is simply released in exchange for the promise to attend court alone. These type of bonds are generally issued with an accompanying “bond amount” that the defendant will owe if they miss a court date. An example would be “a $2500 PR bond.” The idea being that the person can get out without posting any collateral however if they fail to show at their court date they will owe $2500 to the court.
Bond Amounts And Conditions
Bond amounts can be set at any amount that is not considered “excessive” under the Eighth Amendment. This allows extremely wide latitude to the judge issuing the warrant. In State v. Foy, the Kansas Supreme Court noted common factors judges should consider in setting bond amounts. These included the nature of the crime, number of past convictions, and probability of fleeing the state—commonly called “jumping bail.” The more severe a crime is, the higher the bond amount is likely to be. Additionally, factors that suggest a defendant may flee the state to avoid prosecution are taken in account. These include the means and motivation to flee. A defendant that lives and works in Colorado, but was found to have drugs while driving through Kansas may be considered likely to jump bail by returning home to Colorado. Finally, there is no guarantee of bond at all. In the most extreme cases, the court may not set a bond at all without violating the Eighth Amendment.
The bond will also set forth conditions of release, as outlined by Section 22-2802. Again, these conditions can vary greatly, from electronic monitoring to house arrest to alcohol abuse treatment. The conditions of the bond will be laid out in detail and must be adhered to just as attendance at court must be. The conditions of a bond are also a factor in determining the amount. A restrictive condition, such as complete house arrest, may reduce the risk of escape and thus justify a lower bond amount.
A few important consideration regarding bond amounts and conditions should be noted. First, the bond amount set at this point in the criminal process—the amount set for the original filing of the charge—is determined with no input from the accused. The district attorney present evidence that was gathered by the police and arranged in the most damning way possible. That information alone is what the judge uses to set this first amount. It should come as no surprise that this amount is generally not favorable or fair to the defendant. This ties into the second point: bond amounts and conditions are subject to change. And that change can be very drastic, particularly when capable defense counsel is hired to argue for the reduction. When facts and law are argued for both sides, the judge gets an accurate picture of the potential case. This leads to a bond amount and conditions that are more reasonable.
A defendant can violate a bond in two ways. First and foremost, a defendant violates bond when she fails to attend a scheduled court date. This is not just the first court date that appears on the face of the bond, but every court until the matter is either resolved or the judge issues an order releasing the bond or excusing an appearance. Second, as mentioned above, a bond is violated when a condition is violated. Examples include missing required alcohol abuse meetings or unauthorized leaving of the home while under house arrest.
When bond is violated, an immediate result is the issuing of an arrest warrant for the subject. This arrest warrant can include a new bond amount and conditions, which will almost certainly be increased based upon the failure to appear at the court date. Additionally, the cash that was used as “collateral” will be lost. It will not be applied towards fines, court costs, or any other means; instead, it is simply forfeited for failing to honor the bonding agreement. If the bond was secured through a bonding agent, the agent will likely attempt to locate and arrest the defendant. In fact, this “bounty hunting” is a routine practice of bonding agencies and can be an extremely effective means of locating defendants that have jumped bail.
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