What is a bond in Alabama?
First off, let's explain what bond or bail is. A bond is used as a form of guarantee, or promise. Basically, the money serves as a guarantee that a suspected criminal will show up for a court hearing. Similarly, a contractor might pay a bond to guarantee he will complete a project in accordance with his contract. Each type of bond requires some type of backing, or collateral, which generally comes in the form of cash. This cash may be provided by an individual or by a bondsman, which acts on behalf of individuals.
Overview of Cash and Surety Bonds
The biggest difference between a surety and cash bond is that a surety bond involves three parties, while a cash bond involves only two parties. Consider a bail bond of $100,000 as an example. With a cash bail bond, the defendant or one of his family members pays the entire $100,000 in cash to the court or jail. When the defendant shows up for court, he gets his $100,000 back, less any fines, courts costs, fees etc. charged by the court.
With a surety bond, the defendant hires a bondsman to pay the bail money. In exchange for putting out the $100,000, the surety company charges a fee to the defendant, usually around 10 percent of the bail. When the defendant shows up for court, the bail company gets the $100,000 back from the courts. The bondsman makes his money by scraping the 10%.
What is a cash bond?
Cash bonds are relatively simple and easy to understand. The defendant simply puts up the cash and gets released pending the trial. He gets the majority of his money back afterward, less minor court costs and fees. There is no need to contact a surety company or attempt to qualify for a bond.
What types of cases have a cash bond?
In Etowah County, the District Attorney's office will generally immediately put a cash bond on the following cases:
- Sex Cases
- Drug Cases that involve a weapon
Disadvantages of Cash Bonds
The biggest disadvantage of a cash bond is the need to come up with a large amount of cash. Many people don't have access to large quantities of cash, which could leave them stuck in jail pending a trial. In our county, a cash bond is basically a no bond. I have only had one client pay a $10,000 or more cash bond.
The State uses cash bonds as a way of complying with the Rules of Criminal Procedure but still guaranteeing that you stay in jail.
What can be done to change a cash bond to a surety bond?
First, you need to get an attorney. The quicker you get your attorney involved the better possibility of changing the bond. If I am hired, I immediately do two things: 1) File an entry of appearance in the case; 2) File a bond motion. After I file those motions, I then speak to the District Attorney to see if they are willing to negotiate a bond. Often times, they may want to wait a bit of time to get all of the investigators' reports and interviews before they agree on anything. If the DA does not agree, you will then have the opportunity to argue that the bond should be lowered in front of the District Judge.
What will the judge take into account when deciding to change your bond in Alabama?
Rule 7.2(a) provides that Any defendant charged with an offense bailable as a matter of right may be released pending or during trial on his or her personal recognizance or on an appearance bond unless the court or magistrate determines that such a release will not reasonably assure the defendant’s appearance as required, or that the defendant’s being at large will pose a real and present danger to others or to the public at large. If such a determination is made, the court may impose the least onerous condition or conditions contained in Rule 7.3(b) that will reasonably assure the defendant’s appearance or that will eliminate or minimize the risk of harm to others or to the public at large. In making such a determination, the court may take into account the following:
1. The age, background and family ties, relationships and circumstances of the defendant.
2. The defendant’s reputation, character, and health.
3. The defendant’s prior criminal record, including prior releases on recognizance or on secured appearance bonds, and other pending cases.
4. The identity of responsible members of the community who will vouch for the defendant’s reliability.
5. Violence or lack of violence in the alleged commission of the offense.
6. The nature of the offense charged, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance.
7. The type of weapon used, e.g., knife, pistol, shotgun, sawed-off shotgun.
8. Threats made against victims and/or witnesses.
9. The value of property taken during the alleged commission of the offense.
10. Whether the property allegedly taken was recovered or not; damage or lack of damage to property allegedly taken.
11. Residence of the defendant, including consideration of real property ownership, and length of residence in his or her place of domicile.
12. In cases where the defendant is charged with a drug offense, evidence of selling or pusher activity should indicate a substantial increase in the amount of bond.
13. Consideration of the defendant’s employment status and history, the location of defendant’s employment, e.g., whether employed in the county where the alleged offense occurred, and the defendant’s financial condition.
14. Any enhancement statutes related to the charged offense.
What happens if the District Judge denies your bond motion?
If the District Judge denies your bond motion, you are not without other options. You can then file a civil suit called a Petition for Habeus Corpus.
Petition for Habeus Corpus in Alabama
A writ of habeas corpus is used to bring a prisoner before the court to determine if the person's imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, the amount of bail, and the jurisdiction of the court.
As a fundamental instrument for safeguarding individual’s freedom against arbitrary and lawless state action, the writ of habeas corpus serves as a procedural device, by which executive, judicial, or other governmental restraints on personal liberty are subjected to judicial scrutiny.
The purpose of the writ of habeas corpus is not to determine the guilt or innocence of a prisoner, but only to test the legality of a prisoner's current detention. In other words, the writ of habeas corpus only functions to test jurisdictional defects that may invalidate the legal authority to detain the person, and the reviewing court only examines the power and authority of the governmental authority to detain the person, and does not review the correctness of the authorities’ conclusion to detain the person.
The Write of Habeus Corpus allows you to have a hearing in front of a new Circuit Court judge to determine your bond.
What happens if the Circuit Judge Denies your Habeus Petition to change your bond?
At that time, you can wait until after you are indicted, you will then have a new Circuit Judge to file a bond motion in front of.
Rule 7.2(b) of the Alabama Rules of Criminal Procedure provides the recommended bail schedule.
Recommended Range Felonies:
- Capital felony $50,000 to No Bail Allowed
- Murder $15,000 to $ 150,000
- Class A felony $10,000 to $ 60,000
- Class B felony $ 5,000 to $ 30,000
- Class C felony $ 2,500 to $ 15,000
- Drug manufacturing and trafficking $ 5,000 to $1,500,000
- Class D felony $1,000 to $ 10,000
Misdemeanors (not included elsewhere in the schedule):
- Class A misdemeanor $ 300 to $ 6,000
- Class B misdemeanor $ 300* to $ 3,000
- Class C misdemeanor $ 300 to $ 1,000
- Violation $ 300 to $ 500
- Municipal Ordinance Violations $ 300 to $ 1,000
- Traffic-Related Offenses:
- DUI $ 1,000 to $ 7,500
- Reckless driving $ 300 to $ 1,000
- Speeding $ 300 to $ 500
- Other traffic violations $ 300 to $ 500
Advantages of Surety Bonds
The primary advantage of a surety bond is that the defendant does not have to come up with enough cash to cover the entire bond. He simply pays a small percentage to the bond company and may get part of this payment back. If he shows up for court, he has no cash at risk for things like fines and fees and can instead work out a payment plan based upon ability to pay.
Disadvantages of Surety Bonds
Surety companies don't automatically grant bonds to anyone who asks. Instead, they require people to apply for the bond, then weigh the potential risks and returns before deciding to issue the bond. People that are high flight risks may not qualify. Particularly, if there is a likelihood that they could skip town and go back to Mexico. As a result, that company may charge more than 10%. Surety bonds also have a higher fee associated with them than cash bonds. For example, a defendant may have to pay a small fee to the court when using a cash bond, but he has to pay both court fees and surety company fees when using a surety bond.