Bail Forfeiture Relief and Remission Act Exposed

The Bail Forfeiture Relief and Remission Act was adopted by ALEC's Criminal Justice Task Force at the States and Nation Policy Summit on December 4, 2004, approved by the ALEC Board of Directors on January 7, 2005. According to ALEC.org, the Act was re-approved by the Board of Directors on January 9, 2014. (Accessed on 10/17/2015).

CMD's Bill Summary

This bill extends the period for a bail bondsman to pay the bail forfeiture owed to the state and creates notification burdens on the clerk of court that could make it easier for a bail bondsman to avoid financial liability. Typically, an accused person pays a bondsman 10% of their bail, with the understanding that the bondsman is liable for the full amount of the bail if the person fails to appear at court; if the person does not show up the bail bondsman is responsible for finding the person. This Act extends the period for which a bail bondsman can track-down a person before owing the full amount of bail. Additionally, this Act specifies that the bondsman will no longer be liable for the payment if court staff do not follow certain notification procedures. This has the effect of establishing new burdens on the clerk of courts and allows the bail bondsman to avoid payment if the clerk does not meet those burdens. There is a long history of bail bondsman influencing courts. A clerk's failure to meet the procedural notification requirements could be negligence or an intentional act to benefit a particular bondsman.

ALEC Bill Text

Summary

This Act grants a bail agent a remission period to recover a fugitive that has skipped bail, even after the time deadline for a bail agent to recover that person has passed and the bail agent has paid the forfeiture judgment. If the bondsman recovers the fugitive during the remission period, the bondsman can recover all or part of the forfeiture judgment paid. This bill is designed to enhance public safety by giving the bail agent a financial incentive to locate and recover the fugitive, in addition to serving both the interests of the courts and of public safety.

Model Legislation

Section 1. {Definitions}

Section 2. {Forfeiture of Bail}

1. A court shall in open court declare forfeited the bail bond if, without sufficient excuse, a defendant fails to appear for any of the following:

a. Arraignment;

b. Trial;

c. Judgment; or

d. Any other occasion prior to the pronouncement of judgment in which the defendant’s presence in court is lawfully required.

2. The clerk of the court shall, within thirty (30) days of the entry of the forfeiture, mail notice of the forfeiture to the surety and to the bail agent whose names are printed on the bond. The bond shall plainly display the mailing address of both the statutory home office of the corporate surety and the bail agent. The forfeiture shall be mailed to the surety at the statutory home office and to the bail agent and mailing alone to the surety or the bail agent shall not constitute compliance with this Section.

3. The surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:

a. The clerk fails to mail notice of forfeiture in accordance with this Section within thirty (30) days after the entry of the forfeiture; or

b. The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond; or

c. The clerk fails to mail a copy of the notice of forfeiture to the bail agent at the address printed on the bond.

Section 3. {Relief from Forfeiture}

If the defendant appears either voluntarily or in custody after surrender or arrest in court within one hundred eighty (180) days of the date of the mailing of the notice of forfeiture, the court shall on its own motion at the time that the defendant first appears in court on the case in which the forfeiture was entered, direct the order for forfeiture be vacated and the bond exonerated. If the court fails to so act on its own motion, then the surety’s obligations under the bond shall be immediately vacated and the bond exonerated.

Section 4. {Payment of Summary Judgment and Remission}

If, prior to the expiration of the one hundred eighty (180) day period, the surety or bail agent deposits funds in the full amount of the bail bond into an escrow account maintained by the court, then the original one hundred eighty (180) day period shall be extended by an additional one hundred eighty (180) days. Timely payment of these funds is a condition precedent to the one hundred eighty (180) day extension and shall not be waived by any court. The court may impose a fee of up to fifty dollars ($50.00) for the cost of maintaining the escrow account. If within the extension period the order forfeiting bail is vacated and the bail bond exonerated for any reason, the Superior Court shall within thirty (30) days of the entry of such order return to the party that deposited the funds the formerly deposited funds plus interest, if any. After entry of summary judgment pursuant to Section 4., or after a final decision upholding the summary judgment on appeal, the Superior Court shall utilize funds deposited into the escrow account to satisfy the summary judgment. If the summary judgment is reversed, the bond amount shall be returned to the party that deposited the funds within thirty (30) days of the filing of the remitter reversing the summary judgment.

Section 5. {Non-Payment; Report to Department of Insurance}

Within thirty (30) days of the expiration of the initial one hundred eighty (180) day period, assuming that the deposit described in Section 3 has not been made, summary judgment shall be entered against the surety on the bond within thirty (30) days. In the event that the deposit is made, the summary judgment shall be entered within thirty (30) days. If the surety fails to satisfy the summary judgment within thirty (30) days of entry shall result in a suspension of that surety’s right to post bail in the state. Additionally, the court shall notify the state Division of Insurance of the surety’s non-payment.

Section 6. {Severability}

Section 7. {Effective Date}

Adopted by the Criminal Justice Task Force at the States and Nation Policy Summit, December 4, 2004.

Approved by the ALEC Board of Directors January 7, 2005.