Most people think of the bail system as one where people who get arrested can post bail money to get out of jail until their trial begins. People who don’t have the cash for their bail can find a bail bonds agent to put up the funds.
In Louisiana, though, the commercial bail industry has become a powerful — and controversial — system. Louisiana is unique compared to some other states because the criminal justice system uses bail to fund itself, with a percentage of every bond in New Orleans being used as funds for judges and their offices.
The logic behind a money bail system was to ensure that a defendant shows up for trial. If they do and don’t get convicted, they get their money back. But some critics of the bail system are lobbying for reform, including in New Orleans, where there’s a push to end money bail for most municipal crimes.
Why has bail become more controversial, and how does the system work in Louisiana?
How Does Someone Post Bail in Louisiana?
In Louisiana, there’s no constitutional right to bail. Some defendants are not allowed to be released on bail, including those accused of capital offenses where the court determines the presumption of guilt is high, or if the judge determines there’s a substantial risk that the defendant might flee or pose a danger to the community.
Those who do qualify for bail have several options for getting out of jail. They include:
- Personal Recognizance: Non-violent defendants can ask the court to consider a release without bond security.
- Cash Bond: The defendant or a co-signer puts up the entire amount of the bail.
- Commercial Surety Bond: The bail money is put up by a bail bond company after signing a contract with a defendant to receive 12 percent of the bail amount in exchange for guaranteeing the entire amount to the court. The 12 percent premium is non-refundable. Bail bond companies usually require a co-signer.
- Property Bond: A defendant or a co-signer needs to put up a piece of property to cover the cost of bail.
- Personal Surety Bond Undertaking: A third party is brought in who pledges to guarantee the bail amount. A hearing is conducted to determine if the third party is financially capable of co-signing on behalf of the defendant.
When a defendant is first booked into jail and the booking process is over, the defendant is allowed to make a phone call, which could be to a bail bond agent. For most misdemeanors, defendants can usually be booked and post bond within a few hours. For more serious crimes, the State of Louisiana requires defendants to be brought before a judge within 72 hours of arrest, and bail can be set during their arraignment. If the inmate can’t pay the cost of the bail, then they remain in custody until their court date.
A bail bondsman can pay the amount of the bail to the courts in exchange for a payment of 10% the bail amount, and the courts hold the money until their court date arrives. If the defendant shows up for their court date, the bondsman gets back the entire amount of the bail. The inmate won’t get any money back since the 10% premium is payment for the bail bondsman’s services. If the inmate fails to show up, all financial obligations to the bonds agency fall on the defendant.
What Happens if You Fail to Appear in Court?
If you fail to appear in court after securing a bail bond, your bondsman will be considered legally responsible for making sure you appear in court. Bailing you out of jail comes with the bond of assurance that those charged with crimes will arrive on appointed court dates and other appointments.
Because of the level of responsibility, a bondsman has the legal power to arrest the defendant and ensure they follow through on all parts of the agreement. However, bondsmen do not have universal jurisdiction to arrest just anyone. Bondsmen can only make arrests to help ensure the defendants they’ve bailed out appear in court when they are required to do so.
How Do You Get a Bail Refund?
If a defendant pays their own bail and their case is dismissed or the charges are otherwise dropped, you can receive reimbursement for these payments. This means that bond agencies may no longer be required to pay the remaining owed balances to the court. Bail the court sets will no longer be required if these case outcomes apply to your circumstances.
Bond fees and contracts are different from these circumstances, however, as there are generally no refunds permitted with most agreements. Louisiana law and bond contracts explicitly state that there are no refunds in these cases, and you will still be required to make any payments you have previously agreed to fulfill.
What is a Bail Bondsman?
A bail bondsman is an individual who can pay the bail of an arrested individual, allowing the defendant to leave jail before proceeding to court hearings. However, a bail bondsman also has a bond with the court, making them responsible if you do not appear in court when you are expected to be present.
What is Bond Collateral?
A bondsman may collect bond collateral to provide some protection on their end of the deal. If you do not appear in court, the bondsman will be required to pay the full bond and collect the collateral you provide.
What Happens if You Don’t Pay Fees?
If you fail to pay your bond fees—commonly approximately 10% of the total bail—you may face additional costs. While these fees are often paid in installments, a failure to deliver one of these may result in your bondsman taking legal action against you. By taking legal action, you may be obligated to pay more or face other penalties. While a bondsman can arrest defendants if they fail to appear in court, they are not permitted to take direct action for failing to pay bond fees.
When are Bonds Revoked?
Your bond with your bondsman may be revoked in certain circumstances, especially if you fail to follow through on your portion of a bond contract or agreement. For example, failing to appear can result in bond revocation, meaning you may have to spend all your time in jail while waiting to go to trial. This may also be the case if you receive an arrest for more crimes, violate a no-contact order, or use drugs when they are not permitted and positive results appear on tests.
Why is Louisiana’s Bail System Under Attack?
In June 2019, the Vera Institute of Justice published a report urging the city of New Orleans to end the use of money bail, eliminate fees charged to defendants when they get convicted, and instead spend more on the city’s criminal justice system — a plan that the institute estimated would reduce the jail population by half.
Their report argued that in 2017, New Orleans residents paid $6.8 million for bail fees and premiums and $1.9 million in conviction fees, with most of those costs being paid by poor black families, while failing to make the city safer from crime. Instead, they recommend that the city spend $2.8 million more to fund the district attorney and public defender’s offices to help cover money those departments now receive from bail and conviction fees.
While Louisiana state law requires judges to set cash bonds for some crimes, the Vera report recommends that judges get around this by setting nominal bail amounts, as low as one dollar, to ensure the bail amount isn’t the determining factor in a defendant’s pretrial release.
Critics have also claimed that judges have a conflict of interest when assessing bail and conviction fees, since a portion of those fees go to funding court operations. Critics also say the bail system discriminates against defendants who can’t afford to buy their way out jail while awaiting their court date, and that’s led to an expansion of the jail population by locking up people who can’t pay to get out.
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