Bail vs. bond: What’s the difference and how does the process work?

IDAHO FALLS – Criminal cases often involve a suspect being released on bail or a bond amount being posted on a defendant’s behalf.

Depending on the case, the bail amount can be high. Last month, EastIdahoNews.com reported Magistrate Judge David Hunt set a bail amount of $1 million for Pierre Lake for his connection with a home invasion and murder in Madison County.

RELATED | Man charged with attempted murder following home invasion, bail set at $1 million

That got us thinking about the bail/bond process and whether there are rules that govern how it works. Here’s what we found out.

What is the difference between bail and bond?

The words bail and bond are often used interchangeably and though they are closely related, there is a difference between the two.

While both give the defendant temporary freedom, the main difference is who pays it.

Under Idaho statute 19-2905, bail is “a monetary amount required by the court to release the defendant from custody and to ensure his appearance in court.”

A bond, however, is typically posted on a defendant’s behalf, usually by a bail bond company, to secure his or her release. In this instance, the bail bondsman is guaranteeing the defendant will return for their scheduled court date.

A risky business

A+ Idaho Bail Bonds in Idaho Falls posts bonds for clients throughout the state. Owner Danielle Kingston tells EastIdahoNews.com a bail bond company acts as an insurance company for the accused. If they secure someone’s release, the individual is paying for an insurance policy through the company which is typically 10% of the total bail bond amount.

“Sometimes, bail bondsmen or agents will require some additional collateral or security to ensure their appearance, either through a written guarantee (from the defendant) or perhaps they’ll pledge assets or cash,” Kingston says. “It really just depends on our risk and our comfort level with the co-signer and the defendant.”

The Lori Vallow Daybell case is one that stands out to Kingston as being particularly risky. When she was arrested, Kingston says she was “entrenched and neck-deep in looking at the process of underwriting that bond.” Kingston eventually determined the risk factors were too great and decided against posting Daybell’s bond.

RELATED | Bondsman who met with Lori Daybell describes challenges of posting bail

Kingston recalls another case where her company posted $25,000 bond for a man who owned multiple businesses back east. He failed to appear in court and took off to Mexico. Kingston and her team tracked him down and once they had him in custody, they tried to extradite him through customs. A judge ultimately ruled for his release.

“He still ordered us to pay the bond,” explains Kingston. “Business can be very risky. A bail bondsman is known as a liable agent, so we are personally liable, unlike other insurance policies.”

Under normal conditions, if the defendant fails to appear in court after the bond has been paid, Kingston explains the court issues a notice of forfeiture.

“This essentially means we have 180 days from the date of forfeiture to return the defendant back into the custody of the court or we’re ordered to pay the bond,” says Kingston.

Are there laws that dictate bail amount?

When it comes to bail, Justia.com says a judge has the authority to set it at any amount that is not “objectionably unreasonable” or deny it altogether.

There isn’t a specific law that dictates how much bail should be for specific crimes, Kingston says.

“Every county is different, every case is different, every defendant is different and the reason why is because everyone has a personal history,” she says. “Circumstances direct our courts and our judges to make a determination on the bond amount and to set it appropriately.”

A bail bond company is not usually privy to details about a defendant’s personal history.

Idaho Criminal Rule 46 also outlines anyone charged with a crime not punishable by death “must be admitted to bail or released on the defendant’s own recognizance at any time before a guilty plea or verdict of guilt.”

Anyone facing the death penalty or life imprisonment may be admitted to bail prior to conviction. Article 1, section 6 of the Idaho Constitution sets forth a right to bail, providing it is not a capital offense.

“Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted,” the state constitution says.

Bonneville County Clerk Penny Manning says a judge will look at a number of factors in determining the bail amount, including the nature of the offense, ties to the community, employment, family in the community and the likelihood of conviction.

A judge also takes recommendations from the prosecuting attorney.

Ultimately, the decision on whether or not to provide a bail amount is based on the likelihood the defendant will commit additional crimes or leave the jurisdiction after being released.

Kingston says there’s been a change in how bail is handled by the court system in recent years. Pre-trial services are becoming increasingly common, which means a defendant is released on their own recognizance without bail.

“Pre-trial release will actually treat them … like they’re on probation,” Kingston explains. “You’re almost treated like you’re guilty before you’re sentenced. They can require them to do weekly check-ins. There’s a number of things they can impose upon them, but the interesting thing about pre-trial release is that if they fail to appear in court, it just goes away.”

What happens to bail/bond money once the case is closed?

Determining where the bail/bond money ends up is not an easy question to answer because it depends on the case.

Once the defendant has appeared in court, the legal process plays out and the case comes to a close, the Bonneville County Clerk’s office says the bail/bond money is often returned to the person or organization who originally paid it, minus any legal or court fees incurred.

In cases where a defendant fails to show up in court, Manning says it’s considered a bond forfeiture and the bail/bond money is not refunded.

“Based on information from the Idaho Supreme Court, part of the fine distribution goes to the district court fund, 1.4% of it goes to POST,” a training manual for the Idaho Supreme Court says, according to Manning.

About 8% of the funds are given to state general fines, she says. The rest of the money is absorbed by the courts and used for general expenses.