NCI: How Does Bail Bonds Work?

An individual arrested on a criminal charge may be held until trial, unless they are able to make bail. Acquiring a bail bond is one means of making this happen.

When a bond is issued, the bonding company guarantees that the defendant will appear in court at a given time and place. The Government entity (state or federal), in whose court the defendant must appear, is protected by the bond.

If the defendant fails to appear, the bond amount becomes payable and is forfeited as a penalty by the surety insurer issuing the bond.

Bail bonds are issued by licensed "Bail Agents" who specialize in their underwriting and issuance. Bail agents act as the appointed representatives of licensed surety insurance companies.

The cost to the consumer will be about 10% of the total amount of the bond. The court determines the amount of the bond.

Bail History

Did you know where bail comes from?

The United States Bail law is patterned after a centuries old English law. Prior to 1275, English sheriffs decided whether bail would be given. They also set the amount required for bail.

In 1275 English parliament declared when bail would be granted, but continued to allow the sheriffs to set the amount.

In 1628 several nobleman in England refused to loan money to King Charles. They were arrested with no explanation of the charges against them. Parliament enacted a Petition of Right, which declared the right of the accused to know the charges against them. The King ignored the ruling. In 1677 Parliament passed the Habeas Corpus Act providing for release on bail for all bail-able offenses. Bail was typically set too high for most prisoners.

The English Bill of Rights of 1689 prevented unreasonable bail requirements. The law provided that offenses were either bail-able or not bail-able and detention without specific charges and excessive bail was prohibited.

In 1789 James Madison drafted the Bill of Rights with similarities of English law that can be found in the Eighth and Sixth amendments.

Today we have laws that are direct descendants of early English law that include:

Offenses are categorized as bail-able or not bail-able
Detention without specific charges is prohibited
Excessive bail is prohibited

It is important to note that under U.S. Law, the right to bail is not absolutely guaranteed. This right is controlled by the Legislature, the real source of bail law, and the Constitution acts to protect against abuses.

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