The Law of Commercial Surety and Miscellaneous Bail Bonds

Nationwide, an ever-growing number of insurance companies act as sureties on commercial bail appearance bonds in federal, state and municipal courts. Bail is the means through which our criminal justice system permits the release of an accused from custody pending trial, while ensuring his or her appearance at all required court proceedings. This chapter will focus on commercial bail, which involves the release of a defendant into the custody of a professional bail bonding agent who posts an appearance bond in lieu of the defendant principal’s being held in custody.

The inner workings of the commercial bail business can be confusing for several reasons. Bail wears two hats: criminal and civil. It is an integral part of a criminal case, yet any attempt to collect upon the bond following the principal’s violation of bond conditions is strictly civil in nature.2 In addition, statutory and regulatory variations currently exist between states with respect to bail forfeiture procedures, exoneration, remission and fugitive recovery requirements. Significant variations can also exist between political subdivisions of the same state as well as between state and federal criminal justice systems. Local court rules, procedures, standard practices and forms also vary widely.

A persistent lack of uniformity also exists in bail agent licensing and regulation. Since commercial bail involves contracts of suretyship, the majority of states regulate bail bond producers through departments of insurance. Each state has its own unique administrative requirements, forms, licensing standards and regulatory expectations. The diversity of bail administrative and regulatory systems presents a monumental challenge to the many bail insurance companies that conduct business in multiple jurisdictions. As a result, the commercial bail insurance industry routinely supports more comprehensive regulation, enhanced administrative clarity and operational uniformity.

Perhaps the most confusing and misunderstood aspect of commercial bail arises from the multifaceted relationships that exist between the retail seller of the bail bond (the bail bonding agent), the insurance company surety, the governmental obligee and third party indemnitors. An accurate and functional understanding of the basics and resultant dynamics of these relationships is critical to legal analysis and the effective representation of a party in a commercial bail industry dispute. This chapter will discuss these relationships.

Finally, this chapter will also address two areas around which so much media-myth has been created: the bail bond business itself, and the process of retrieving and surrendering the absconding defendant, or the “skip,” back into custody. The activities of bail bonding agents and fugitive recovery agents have been seized upon by Hollywood screen writers, crime novelists and reality television show producers to create a highly distorted picture of individuals who make important contributions to public safety and the administration of justice.

The purpose of this chapter is to make the reader more comfortable with commercial bail by addressing its basic legal principles in the context of its unique and frequently misunderstood operational details.

The full report can be found here.