Bail is the tool that the courts use to make sure that a defendant arrives at court for their proceedings when they are supposed to. At the first arrest, bail is set by the judge depending on what crime the defendant has been charged with, and whether the judge considers the defendant to be a “flight risk”.
A defendant may not be considered a “flight risk” if he or she:
- Is well established within the community
- Has a job
- Has many family members within the community
Once bail is posted, often times, families or friends cannot afford to pay for bail. Additionally, some feel that it may not be advisable to post 100% of the bail bond as they believe this may increase the likelihood that the court will charge the defendant a minimum of what the defendant has deposited in cash with the court.
At this point they will call a bondsman to post a bail bond. Posting a bail bond involves a contractual undertaking guaranteed by a bail agency, surety and the indemnitor (usually a relative or close friend). The bail bond is a financial guarantee to the court that the defendant will appear in court each and every time the court orders.
For this service, the bail agent charges a premium for the service (typically 10% of the full bail amount) and a service charge of no more than $25.00 and a State Tax of $12.00. In addition, the bail agency may require physical collateral, the signing of a bail bond agreement (contract), or both, depending on the individual circumstances. (TN Annotated Code 40-11-316)
The bondsman will require an indemnitor (co-signor) and may be given some form of collateral to insure that the defendant will do everything he or she needs to do, including appearing before the court. The bondsman and the indemnitor will pledge to the court that the defendant will perform all of his or her proper duties. The defendant is released on bail and given a date and location to appear in court.
If the defendant fails to appear in court, call the bonding company promptly as there is a narrow window of opportunity to avoid having to pay additional charges. The indemnitor is responsible for paying the full amount of the bail if the defendant cannot be located. If the defendant is located and arrested by the bail agent the indemnitor is responsible for all expenses incurred by the bail agent while looking for the defendant.
For the judicial proceedings, if the defendant fulfilled all of his or her responsibilities, the defendant or the indemnitor will only need to pay the bondsman for his fee and not the entire bail. However, if the defendant fails to appear (“skips bail”) then the indemnitor will need to pay the entire bail amount. The defendant will usually do everything that he or she needs to do, so that the indemnitor will not have to pay the entire bail.
Note: It is very important the indemnitor feels confident the defendant will appear in all of his/her court appearances or posting a bail bond is not recommended.
