The Bail Process
Once someone is arrested on a criminal charge, they may be
held for trial unless they furnish the required bail, often in the form of a
bail bond. When a bail bond is issued, the person released promises to appear in
court at the designated time and place.
If the person released on a bail bond fails to appear in court on their
designated appearance date, the bond becomes payable and is forfeited as a
penalty. For this reason, a bond usually requires some type of collateral such
as cash, title to real property or other types of security.
It is important to note that only a person holding a bail license may solicit
the negotiation of a bail bond. If you require bail bond services, please click
on the on-line bail request form on this site. It's easy, fast and effective.
Remember, Bail Agents are here to help you through this process.
How Bail Works
When an individual is arrested for a crime in the State of
Maryland, most often that person will be taken to a local law enforcement
station for booking, prior to confinement. Once the Defendant has been arrested
and booked, they have several options provided to them for release - provided
the outcome of the case supports their release. They are:
- Cash Bond: In this instance, an individual must post with the
court, the total amount of the bail in cash. This strongly incentives the
defendant to appear in court as scheduled as non-appearance results in the
forfeiture of the cash bond.
- Surety Bond: This process requires a contractual undertaking
guaranteed by an insurance company which has the assets to fully satisfy the
amount of the bail bond. The insurance company contracts with the Bail
Agent, and the Bail Agent then assures that he will re-pay the bond if the
defendant fails to appear on his schedule court date. Because the Bail Agent
has promised his own money, he has a vested interest in ensuring that the
defendant will in fact appear in court as scheduled. Bail Agents invests the
necessary time and funds required to locate and return an individual who has
not honored their commitment to appear in court. It is widely held that Bail
Agents have highly effective and efficient methods of ensuring a defendant
is in court as scheduled.
- Property Bond: Individual may secure release from custody by
posting a property bond with the court. In this instance, the court records
a lien on property, in the amount of the bail. If the defendant subsequently
does not appear in court on the scheduled date, the court may initiate the
foreclosure process in order to procure the forfeited bail amount.
- Own Recognizance (O.R.): Based on a telephone interview with
defendant, the staff member of a pre-trial release program will attempt to
determine if individuals in custody will in fact appear in court on their
scheduled appearance date even without the strong motivator of financial
forfeiture as incentive.
The Bail Agents Right to Arrest
Although evolving over several centuries, modern day bail
most closely resembles the system, initially designed to keep the King's peace
in medieval England, which placed responsibility of the defendant to a tithing
or even a whole township in order to ensure that the accused would appear before
the court.
Applicable Case Law
Taylor v. Taintor
Decided by the courts in 1873
"When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize and deliver him up in their discharge, and if that can not be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of the new process. None is needed. It is likened to the re-arrest, by the Sheriff, of an escaping prisoner" (Emphasis added.)
Common Law Right To Arrest
Additionally, modern statues provide Bail Agents with the right to arrest an
individual out on a bond. Under the Federal statute declaratory of this right,
any accused charged with a criminal offense who is released on a bail bond with
sureties may be arrested by the surety, delivered to the US Marshall, and
brought before any judge or officer empowered to commit for such offense. At the
request of the surety, such judicial officers may re-commit the accused to the
custody of the Marshall.
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History of Bail
During the colonial period, Americans relied upon the
existing bail structure that had evolved in England over several hundreds of
years. However in 1776, when the colonists declared their independence, they no
longer depended on English law, rather they set down policies which closely
corresponded to English tradition.
In medieval England, processes to ensure that the accused would appear for trial
began as early as the trials themselves. It wasn't until the 13th century that
the Sheriffs were allowed to determine when a defendant could be detained for
trial and when he could be released with a guarantee or a promise that he would
return to stand trial. Unfortunately, the sovereign authority held by Sheriffs
was not always equitably disseminated throughout each region. As a result, the
Statute of Westminister was established in 1275, and eliminated the discretion
of sheriffs with respect to which crimes were and were not bail-able.
It wasn't until several centuries later that bail law underwent its next major
change. Early in the 17th century when King Charles I did not receive funds from
the Parliament, he required several noblemen to issue him loans. Those who
refused were imprisoned without bail. Five knights previously incarcerated for
this offense filed a habeas corpus petition arguing that they could not be held
indefinitely without bail or trial. In court, Attorney General Heath contended
that the King could best balance the interest of the state security along with
the interest of individual liberty if he was allowed to continue to exercise his
sovereign authority to imprison. The court upheld Attorney General Heath's
argument.
In response to the King's action and the court's ruling, Parliament issued the
Petition of Right of 1628 arguing that contrary to the Magna Carta and other
laws guaranteeing that no man could be imprisoned without due process of law,
the King had recently imprisoned people before trial when no just cause had been
shown. Unfortunately, the King, the courts and the sheriffs were able to defeat
the intent of the Petition of Right of 1628 by creating various procedural
delays in granting the writs of habeas corpus. It wasn't until these procedural
delays were critically excessive that Parliament passed the Habeas Corpus Act of
1677. The Act stated:
A magistrate shall discharge the said prisoner from Imprisonment taking his or
their Recognizance, with one or more Surety or Sureties, in any Sum according to
their discretion, having regard to the Quality of the prisoner and the Nature of
the offense, for his or their Appearance in the court of the Kings
bench&ldots;unless it shall appear&ldots;that the Party (is)&ldots;committed&ldots;for
such Matter or offenses for which by law the Prisoner is not bail-able.
Although the Habeas Corpus Act of 1677 improved administration of bail laws, it
didn't provide any protection against excessive bail requirements. As a result,
even if a suspect was accused of a bail-able offense, he may still be detained
if the bail amount was inordinately high. As substantiation of this abuse
reached Parliament, it responded with the English Bill of Rights of 1689. The
Bill of Rights proposed to resolve this issue by proclaiming "that excessive
bail ought not to be required." Thus, the concept of the Eighth Amendment in the
U.S Constitution was drafted to prevent the accused of bail-able offenses from
exorbitantly high bail requirements. It is important to note that while the
amount of bail was addressed, it did not alter the categories of bail-able
crimes as referenced in the Statute of Westminister and clearly did not guaranty
the right to bail.
In 1789 James Madison was commissioned to prepare an initial draft for the Bill
of Rights and essentially used verbatim Section 9 of the Virginia Constitution
which provided that "Excessive bail shall not be required&ldots;." During the
congressional debates Mr. Livermore voiced his concern that this amendment only
required that bail not be excessive, but didn't provide a definition of what
constituted an excessive bail requirement.
The bail clause in the Eighth Amendment was only the first part of the
structure. The final part of the American bail structure and the basis upon
which the Constitution provisions are based is the statutory classification of
justice officials' power concerning bail and the categorization of crimes into
bail-able and non-bail-able offenses.
The Eighth Amendment forbiddance of excessive bail resolved that bail might not
be exorbitant in those cases where Congress has deemed it suitable to permit
bail. The Congress then enacted the Judiciary Act defining what offenses would
be bail-able. Habeas corpus protection was provided by Article 1 of the
Constitution.
In 1966, Congress enacted the first major substantive change in federal bail law
since 1789. The Bail Reform Act of 1966 created a principle for releasing a
suspect with as little burden as necessary in order to insure his appearance at
trial. In 1969 the Judicial Council Committee studied Bail Reform Act of 1966,
and was particularly bothered by the release of potential dangerous non-capital
suspects permitted by the 1966 law and recommended that even in non-capital
cases, a persons dangerousness be considered in determining conditions for
release. Congress upheld the ideals put forth in the committee's proposal and
changed the 1966 Bail Reform Act as it applied to persons charged with crimes in
the District of Columbia. With that decision by Congress came the bail system,
as we know it today.