Bail and FTA

by Professor Byron L. Warnken on December 11, 2012


If an individual is arrested for a crime, the arrestee is taken before a court commissioner.  One of the tasks accomplished by the court commission is a determination of pre-trial release status.  About half of those arrested are released on personal recognizance, meaning simply the promise to appear for trial.  For about half of those arrested, the court commissioner imposes bail, meaning the requirement to post property or money to assure that they will appear for trial.

If the bail is high and the arrestee lacks the necessary cash, and does not have sufficient equity in real property, the arrestee usually turns to a bail bondsman to gain release pending trial.  A bail bondsman takes a non-refundable fee for 10% of the amount of the bail in return for accepting the risk that the arrestee will not appear for trial, and the bail bondsman will have to pay the full bail amount.  For example, if a court commission sets bail at $100,000, a bail bondman will receive $10,000 from the Defendant in return for accepting the risk that the Defendant does not appear for trial.  If the Defendant shows for trial, the bail bondman earns $10,000.  If the Defendant flees, the bail bondman is “on the hook” for $100,000.  Naturally, bail bondsman constantly monitor those they have “bailed out:” to ensure that they appear for trial.

The Court of Appeals of Maryland, which is Maryland’s Supreme Court, recently heard oral argument in a case in which the Defendant did not appear for trial, the bail bondman was required to pay the full amount pledged, and the bail bondman then unsuccessfully sought to recoup the forfeited bail.  In that case, the reason that the Defendant did not appear for trial was that the federal government had deported the Defendant.

The State’s argument is that one of the many risks that a bail bondman accepts, when taking a 10% fee, is the risk that the Defendant will be deported and, as such, the bail bondsman is not entitled to remission of any part of the fee.  The bail bondsman’s argument is that (1) a bail bondsman cannot be expected to know the secret workings of the federal government, which would never disclose its position on deportation until it took steps to deport; and (2) a bail bondsman’s obligation is to bring the Defendant to trial and, in this case, the bail bondsman was precluded from doing that job because the federal government had “snatched” the Defendant and sent him permanently out of the country.

There is a reported appellate opinion in Maryland that held that, when the Defendant was incarcerated in another state, the bail bondsman was entitled to have the forfeited bail remitted.  Thus, it appears, from the case law, that, if there is no fault on the part of the bail bondsman, associated with the Defendant’s failure to appear for trial, the bail bondsman is entitled to have the forfeited bail remitted.

This also makes sense from a policy standpoint.  A large number of individuals in this country who are charged with crimes are not U.S. citizens.  I am not speaking of those who are illegal aliens.  I am speaking of lawful aliens, e.g., green cards, visa, etc.  If the Court of Appeals rules against the bail bondman, in this case, such a ruling could cause bail bondsmen to be unwilling to post bail for lawful aliens.  The bail bondsman may fear that the criminal charges, in the every case at issue, could cause the lawful alien to be deported and cause the bail bondsman to lose ten times the amount that he or she received in fee.  An unintended consequence could be that lawful aliens are much less likely to be released on bail.  The law should continue to not penalize bail bondsmen if the inability to bring the Defendant to trial is not the bail bondsman’s fault.

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