How an amount is set and what a schedule does, cash compared with a surety bond, what a bond agent charges and keeps, collateral and the person who signs for it, conditions attached to release, electronic monitoring, what happens on a missed date, and getting money back at the end.
A bail bond premium is a percentage of the bond amount, set by rates filed with the state insurance regulator, and it is earned when the person is released rather than held on deposit. Agents generally may not charge above or below the approved rate. Limited additional charges are permitted in some states, such as a disclosed credit card processing fee on collateral. Prohibited practices commonly include soliciting at jails and paying for attorney referrals.
Federal Rule of Criminal Procedure 46 allows a court to set aside a bail forfeiture where the surety later surrenders the person released into custody, or where it appears that justice does not require forfeiture. The court must exonerate the surety and release any bail once a condition has been satisfied or the forfeiture is set aside or remitted. State statutes follow a similar pattern, usually with a fixed period after notice in which the application must be made.
In most states an arrested person is first held against a county bail schedule that lists an amount for each offense. At the first appearance a judge sets bail individually, weighing the nature of the charge, the strength of the evidence, the person's history and community ties, and any risk to others. Federal courts work from 18 U.S.C. 3142, which directs release on the least restrictive conditions that will reasonably assure appearance and community safety.
Conditions of pretrial release are set by a judicial officer and can be amended by one. A motion to modify identifies the condition, explains why it no longer fits, and proposes a specific alternative. Federal law requires conditions to be the least restrictive that will reasonably assure appearance and community safety, and permits a judicial officer to amend conditions at any time. Ignoring a condition rather than applying to change it can lead to revocation and detention.
A bail surety has long-standing authority to arrest the person released on its bond and surrender them. Taylor v. Taintor described that power in broad terms, treating the principal as in the surety's custody. Modern practice is narrower: 18 U.S.C. 3149 requires a surety who arrests a person to deliver them promptly to a marshal for presentation to a judicial officer, and states impose licensing, training and conduct rules on anyone performing recovery work.
A bail indemnity agreement makes the cosigner liable to the surety for the full bond amount if the person released fails to appear, along with costs of apprehension where the contract provides for them. Collateral is separate from the premium: it is security, must be receipted, and is returned when the bond is exonerated. Florida requires collateral to be returned within a set period after notice that the bond has been discharged, and prohibits certain forms of collateral.
Electronic monitoring is a condition of pretrial release requiring a person to remain at an approved location during set hours or to be tracked in the community. Federal programs use radio frequency, satellite location, voice recognition and mobile applications, and officers receive alerts for unauthorized absence, late return, entry into a restricted area or device tampering. Who pays varies: federal costs are borne by the judiciary, while many state and county programs charge a daily fee.
Bail is released when a court exonerates the bond, which Federal Rule of Criminal Procedure 46 requires once a bond condition has been satisfied or a forfeiture is set aside or remitted. Cash posted with the court is refunded to the person named on the receipt, subject to deductions. In federal cases 28 U.S.C. 2044 directs money deposited by or on behalf of the defendant to be applied to any assessment, fine, restitution or penalty, excluding money put up by a third-party surety.
Bail set at a first appearance can be revisited on application. Courts reduce an amount, substitute non-financial conditions, or grant release on recognizance where the person's ties and record show that appearance is likely. Federal law directs a judicial officer to impose the least restrictive condition that will reasonably assure appearance and safety, and bars a financial condition that results in detention. New information can reopen the question.
Cash bail is the full amount paid to the court, refundable when the case concludes and the bond is exonerated, subject to deductions the court may take. A surety bond is bought from a licensed bail agent for a premium that is earned on release and is not returned regardless of outcome, and the agent may also require collateral and a cosigner. Some states offer a deposit option where a percentage is paid to the court instead.
When a defendant does not appear, the court typically issues a bench warrant and declares the bail forfeited. Federal Rule of Criminal Procedure 46 requires the court to declare bail forfeited if a bond condition is breached and allows the forfeiture to be set aside where the surety surrenders the person or justice does not require it. Failure to appear is separately punishable under 18 U.S.C. 3146, subject to an affirmative defense for uncontrollable circumstances.
