Bail Forfeiture 101

When a defendant fails to appear for a court date, the judge is required under California Penal Code Section 1305 (PC 1305) to declare their bail forfeited. Bail forfeiture is an extremely complicated process that works differently for individuals than it does for commercial bail bond companies. This post is going to focus on how the process works (1) for individuals, and (2) for commercial surety bail companies, also known as bail bond companies. I want to highlight how oppressive the system is on defendants and how few opportunities counties have to collect any money from bail bond companies as a result of the way the law is written.

How it Works for Individuals

When a person is arrested and brought to jail, he or she can make bail, which means they have an opportunity to pay money either to the court or to a bail bond company in exchange for freedom.

Judges set bail according to the County Bail Schedule (link is a PDF of Santa Clara County’s Bail Schedule), usually in a defendant’s first court appearance. For example, if a defendant is arrested for battery, a violation of CA Penal Code Section 242, they are guilty of a misdemeanor and minimum bail is to be set at $5,000.

Cash Bond:

Most people don’t carry $5,000 on hand, or even have it waiting in a checking account. If they do, they can deposit that money (or property equivalent) with the court and promise to come back to court for their hearing. If they don’t show up for their hearing, they lose the money immediately – it is “forfeited.” This is called “cash bond” or sometimes “cash bail.” According to officials in Santa Clara, it happens rarely because so few people have the money to take this option.

Bail Bonds:

The other option that an individual has is to pay a bail bond company a percentage of their total bail amount, usually 10%. In return, the bail bond company promises to pay the remainder of the bond if the individual does not appear in court.

He or she can give the bail bond company either cash or rights to property. This is not always the defendant’s property; it can also be a family member’s. In fact, bail bond companies and their representatives go through a lot of trouble to get co-signers on the bond, in case the defendant “skips bail,” i.e., doesn’t come to court.

Whether the defendant appears in court or not, he or she loses the money paid to a bail bondsman because the individual’s initial payment for the bond is non-refundable. Thus, the defendant has both lost the money he or she paid to the bond company, and has no incentive to show up to court, precisely because the money is already gone. (For a more detailed discussion of the differences between cash bail and bail bonds, see the Johnny Cash / James Bond hypo in “Bail and Public Safety in Santa Clara County.”)

How it Works for Bail Bond Companies

When all of the steps above occur, and the defendant misses a court date, meaning bail is forfeited, it works differently for the bail bond companies. The company that sold the bond is responsible for the other 90% of the bail amount, which means they either pay out or they sell someone’s house (or other assets) in order to make up the cost. Bail bond companies are not required under CP 1305 to initially give the court anything of their own as collateral as a condition of the defendant’s release, just the “undertaking of bail” which is just a promissory note – i.e., a promise.

Meanwhile, the bail bond company’s agents may be out looking for the defendant, or may not be. Santa Clara officials have said that people most often miss court dates because they were asleep or drunk, and those people often turn themselves in. Other times, the bail bond company waits for the person to be rearrested, which happens strikingly often: 29.4% of cases – more than one out of four.

In either of those cases, the bail bond company is released of all obligations and the bond is exonerated under PC 1305(c)(1), meaning that the bail bond companies owe no money to anyone. (Exoneration is the topic of my next post.) Further, the bail bond company will be notified of the order exonerating bond and will be able to get first crack at selling the defendant a new, more expensive bond in order for the defendant to be re-released (the charges stack up, which means higher bail). The new bond is for the second crime, and the defendant is now free again to go out and commit a third crime. The process is made even easier for bail companies because under PC 1305(c)(1), the companies have 180 days to track down the defendant or wait for him or her to be rearrested, in this county or another (PC 1305(i)).

If this seems confusing, that is because it is. The law is written that way. Simply put, bail bond companies are highly incentivized to go after their clients who fail to appear, but rarely need to. On top of that, the money that the defendant paid for his or her freedom evaporated as soon as he or she walked out of jail. That is, as long as that price was paid in actual money, not a house or part of one. Unfortunately, this is just one way that bail bond companies hurt low-income families while offering a negligible criminal justice benefit. The way that bail is forfeited is largely procedural, which adds to the confusion. The beginning of PC 1305, the part that includes forfeiture, is below with slight changes and explanations.

When and How Bail is Forfeited:

There are only a few specific instances where bail has to be surrendered.

Bail is forfeited if a defendant misses:

(1) Arraignment, when the defendant is formally charged;

(2) Trial;

(3) Judgment, where the judge reads the punishment(s) for a crime if the defendant is found guilty;

(4) “Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required,” which is essentially, if the judge says that the accused has to be there for something; and, finally,

(5) “Surrender[ing] himself or herself in execution of the judgment after appeal,” i.e., when the defendant is sentenced and fined, taken back to jail, or taken to prison. That is also when any conditions the judge imposes are announced.

Those eight lines of text, subsections (a)(1)-(5), are the only provisions in a law that runs about two pages in 10-point font, that explain when a forfeiture can happen and the bail bond company might be exposed to liability as a result. The rest of Section 1305 details the impressively extensive scenarios where a bail bond company can escape liability, which will be the subject of my next, no-doubt much longer post.