A bail bondsman is a surety who agrees with the state that if the state will release the accused from custody, the surety will undertake that the accused will appear personally at a specified time and place to answer the charge made against him/her[i].
The danger that a defendant may flee the jurisdiction of the court is a known risk that a bail bondsman assumes and provides insurance against[ii].
While the court will look to the surety’s property in the event that the accused fails to appear at the proper time and place, it is the accused’s presence in court that is the raison d’etre for the bail bondsman and not his/her financial wherewithal[iii].
Under some jurisdictions, bail bond executed by a bail bondsman may be accepted only if[iv]:
- the bondsman’s name appears on the most recent list maintained by the chief clerk of the District Court,
- the bail bond is within the limit specified in the bondsman’s general power of attorney as shown on the list or in a special power of attorney filed with the bond, and
- the bail bond is accompanied by an affidavit reciting that the bail bondsman:
a) is duly licensed in the jurisdiction in which the charges are pending, if that jurisdiction licenses bail bondsmen;
b) is authorized to engage the surety insurer as surety on the bail bond pursuant to a valid general or special power of attorney; and
c) holds a valid license as an insurance broker or agent in the state, and that the surety insurer is authorized by the insurance commissioner of the state to write bail bonds in the state.
A bail bondsman has certain extraordinary powers under the common law, as the result of a contract with his/her client[v]. A bail bondsman’s common-law right to recapture includes the right to remove his/her principal from one state to another, without resort to extradition proceedings, in order to return the principal to the forum from which s/he was released and to which s/he obligated to surrender[vi].
A bail bondsman is a bonded professional with limited powers of arrest[vii]. The bondsman may be authorized under the law of the state where a bond is made to retrieve bail jumpers, but s/he must abide by the law of the state s/he enters to pursue his/her fugitive[viii].
The bondsmen has an interest in ensuring that the principals appear in court, because if they do not appear then the bond will be forfeited[ix]. As a result of their custody, bondsmen have their principal on a string and may pull the string whenever they please, and render him/her in their discharge.
If the principal refuses to surrender, the bondsman under common law can lawfully arrest and return him/her to the sheriff’s custody. Further, the common law confers on bondsmen broad powers with which to effectuate their seizures of principals.
There is no clearly established right under the Extradition Clause, USCS Const. Art. IV, § 2, Cl 2, for bondsmen and hence it does not shield a bondsman under federal law from arrest and prosecution for violation of state law in apprehending bail jumpers[x].
The intentional tort limitation statute applies only to ordinary duties between ordinary people. A bail bondsman is not acting with the powers of an ordinary citizen. S/he is proceeding under the statutory power to arrest granted to him/her incident to his/her license as a professional. Thus, if in the course of an alleged wrongful arrest and detention, a bail bondsman falsely imprisons and maliciously prosecutes an individual, then it is not an ordinary duty which has been breached[xi].
The power of a bondsman to seize his/her fugitive principal and return him/her to custody arises from the private relationship between the bondsman and the principal[xii]. When a person is arrested and released on bond, s/he is transferred from the custody of the sheriff to the custody of the bondsman.
The control of a bondsman over his/her principal is a continuance of the original imprisonment. Therefore, when a prisoner is out on bond s/he is still under court control, though the bounds of his/her confinement are enlarged. The bondsmen are his/her jailers.
Statutes provide that in the event of a final judgment of forfeiture of any bail bond, the amount of money so forfeited by the final judgment of the proper court, less all accrued court costs and excluding any interest charges or attorney’s fees, will be refunded to the bail bondsman[xiii].
However, the defendant should be returned to the sheriff of the county to which the original bail bond is returnable within twelve months of the date of such final judgment, or proof made of incarceration of the defendant in another jurisdiction.
[i] Bruno v. Commissioner, 71 T.C. 191 (T.C. 1978).
[ii] Prof’l Bail Bonds, Inc. v. State, 185 Md. App. 226 (Md. Ct. Spec. App. 2009).
[iii] Bruno v. Commissioner, 71 T.C. 191 (T.C. 1978).
[iv] Md. Rule 4-217.
[v] State v. Portnoy, 718 P.2d 805, 811 (Wash. Ct. App. 1986).
[vi] Lopez v. McCotter, 875 F.2d 273, 277 (10th Cir. N.M. 1989).
[vii] Mathis v. Indemnity Ins. Co., 588 F. Supp. 489 (S.D. Miss. 1983).
[viii] Lund v. Seneca County Sheriff’s Dep’t, 230 F.3d 196 (6th Cir. Ohio 2000).
[ix] McCoy v. Johnson, 176 F.R.D. 676 (N.D. Ga. 1997).
[x] Lund v. Seneca County Sheriff’s Dep’t, 230 F.3d 196 (6th Cir. Ohio 2000).
[xi] Mathis v. Indemnity Ins. Co., 588 F. Supp. 489 (S.D. Miss. 1983).
[xii] McCoy v. Johnson, 176 F.R.D. 676 (N.D. Ga. 1997).
[xiii] Miss. Code Ann. § 83-39-7.