Taking a Closer Look at Bail Contracts

Picture this: You just got arrested. You’re in jail, most likely scared and have no idea what is going to happen. Within a few days, you go to court for your arraignment. Since you can’t afford an attorney, a public defender is there to represent you. Your case gets called and you go before the judge. After a quick five minutes of legal talk that you don’t quite understand, the judge sets your bail at $15,000. Both you and your family don’t have that kind of money, so your next option is to find a bail bondsman to post your bail for you. At this point, you just want to get out of jail. You call a bail agent who tells you that if you come up with 10% of your bail amount, $1,500, he’ll put up the rest. You can come up with $1,500, so you agree. The bail bondsman tells you that you must come down and sign the contract within 2 days of being released. You agree immediately because you’re getting out of jail. Chances are you aren’t thinking, “What did I just agree to?”

This post is going to look at exactly what the person in the above hypothetical agreed to in order to gain his or her freedom. My next post will look at the legal grounds and implications of this contract, including whether the following contract terms are enforceable and if any consumer protection laws exist to protect defendants in these contracts. In my research, I was able to look at three standard bail contracts from different bail agencies, including Bad Boys Bail Bonds, Bail Hotline, and Vu Bail Bonds whose contract can be found here. For the most part they all had the same terms in the contract, with a few deviations, but I will discuss the terms common to all three.

First, the bail contracts contain certain words or phrases that I will define: “First party” refers to the person paying the bond: it could be the defendant or someone who is willing to be a co-signor and is bound to the same contract. “Second party” is the bail bond company, and the “principal” is the defendant. A “surety” is the insurance company that is backing the bail bond company. My colleague, Ruby Renteria, defined “bond” as “a formal written agreement in which a person undertakes an obligation(s).” “Collateral,” usually consisting of property, such as real estate or cars, can be required by the bail company. The bail agent can take possession of the property if payments aren’t made.

In the standard bail contract, most people agree to pay a non-refundable “stated amount”, which is 10% of the bail amount that the judge set. In our hypothetical, this would be the $1,500 mentioned above. This term is usually the first term both parties agree to. The sample contract from Vu Bail Bonds uses this language:

To pay ‘stated amount’ per annum for this Bail Bond. The fact that Defendant may have been improperly arrested, his bail reduced, or his case dismissed, shall not obligate the return of any portion of said premium.

This part of the contract probably doesn’t surprise you; it is what the parties agreed to, and it explicitly states that the money is non-refundable. However, the word “annum” should be surprising. The contract explains this term in the next line,

This bond is renewable each year. First Party agrees to pay to Second Party a renewal premium in the amount stated above, twelve months after the date on which this Bond was executed. If said renewal premium is not paid upon written demand, second party has the right to surrender Principal, as provided in the CA Penal Code §1300.

This means that if you paid 10% to get out of jail, and your case gets continued in court, as it usually is, a year later you are required to pay another 10% of your bail. The way our court system works today, it is not uncommon for cases to take more than one year to get resolved, so even though you aren’t even in jail anymore, you still have to pay another 10% of your bail or else you will be returned to custody.

The hidden expenses in a bail contract continue on from there. The second term of a standard bail agreement states,

To reimburse Second Party and Surety for actual expenses incurred by Second Party or Surety in connection with the arranging and/or execution of Bail Bond or renewal or substitution thereof whether or not said Principal refuses to be released after arrangements have been initiated by Second Party.

In simpler terms, you are essentially agreeing to pay the Bail Bond company costs associated with them securing your bail. Further, after the company has started the process of obtaining your release and you decide for whatever reason you don’t want to be released, you’re on the hook for those costs as well.

What if in the midst of trying to secure your bail, you left out pertinent information or misrepresented some information about yourself in your initial conversation with the bail bondsman? Well, there are contract terms that cover this scenario as well. If the bail bondsman feels it is necessary, he can come after you for the full amount of your bail. In the middle of our sample bail contract, the fifth term states,

To pay second party or surety as collateral upon demand, the penal amount of Bail Bond whenever Second Party or Surety, as a result of information concealed or misrepresented by the First Party or Principal or other reasonable cause, any one of which was material to hazard assumed, deems payment necessary to protect the Second Party.

A quick definition may help: “penal amount” is money bail the judge set for the defendant to pay to obtain his release. In our hypothetical, the penal amount is $15,000. The enforcement of the nondisclosure/misrepresentation term is completely up to the discretion of the bail bondsman, subject to state regulations, and the defendant is at the mercy of the bondsman to not invoke this term.

Finally, after the hidden fees and costs that you most likely weren’t aware of when making the agreement with the bail bondsman, the last term of a bail contract states,

The surety or its representatives shall have the right to examine the credit history, department of motor vehicle records, employment history, books and records of the undersigned, or assets covered by the bond, or the assets pledged as collateral for the bond.

Agreeing to this term means you are handing over access to private information about yourself, and the reality is, you’re agreeing to this so you can gain your freedom. Even more troubling is the reasoning why the bail bondsman wants this information. They require this private information so they are able to track you down if that becomes necessary. What is ironic about this situation is that to gain your freedom, you’re actually sacrificing a whole lot more than you first expected in order to gain that freedom, including your privacy and the privacy of your loved ones. While this sacrifice is troubling, your freedom is worth it.

In my next post, I will be looking at the legal implications of these terms, including if they comply with state law and whether there are any consumer protection laws to protect the defendants.