photo by Andrew Bossi, Flickr
Joe Stiles explains a new Tennessee law that ends a bail bondsman’s liability when a defendant pleads or is found guilty instead of when he is sentenced.
Nothing sparks controversy within the criminal justice system so much as the duration of the bail agreement.
Every party has an interest in the duration of bail in a criminal case. Bail permits a wider range of movement for the defendant and imposes a degree of financial responsibility for the bonding company. It’s an assurance to the court regarding the extended custody of the accused and an instrument to be used by both the prosecution and the defense to tether a defendant to the ultimate disposition of a case.
The argument arises most often when trying to determine who is responsible for the custody of the defendant and for assuring his appearance after the state reaches an agreement with the defendant—in other words, once the defendant pleads or is found guilty.
New Tennessee Statute
Tennessee recently passed SB736/HB102, which states that the duration of a bail bond would terminate upon an agreement between a defendant and the state. Although this exact language is included in Tennessee Code Annotated 40-11-138(b), its inclusion among other examples of termination of the duration of a bail bond along with language regarding the custody of the defendant until sentencing by the court has produced confusion as to the exact length to which a bonding company should be held liable for the appearance of a defendant.
To this end some courts have held bonding companies liable for the appearance of a defendant for months and in some cases years after the defendant has already reached an agreement with the state regarding guilt or innocence, and it has primarily been used to ensure that the defendant lives up to the performance of the agreement.
The Bail Bond, Defined
To better understand the subject matter of the duration of a bail bond, it’s necessary to clearly understand just what a bail bond is.
A bail bond is a contract transferring physical custody of an accused person who has not yet been found guilty of a crime from a government detainment facility to the private custody of the defendant’s choosing. The bonding company, accepting that custody, charges a fee for the service and is required to produce the defendant at court appearances appointed by the court having jurisdiction over the case.
If the defendant fails to appear on that court date, the court may order a conditional forfeiture of the bond against the bonding company and order the bonding company to return the defendant back to the state’s physical custody or pay the full amount of the bail.
Since no single object may occupy two physical places at the same time, it stands to reason that no person may be in the physical custody of both the state and the bonding company at the same time.
When viewing a bail bond in this light, the reasoning behind the enactment of this statute becomes much clearer. Since no single object may occupy two physical places at the same time, it stands to reason that no person may be in the physical custody of both the state and the bonding company at the same time.
In essence, a bonding company only has custody of a defendant when he is beyond the custody of the state. This custody is best defined by who has authority over the defendant at any given time. For example, while a defendant is on bond, the court has no physical custody of the defendant and is limited to ordering the bonding company to produce the defendant so that they might reassert their right to custody.
Likewise, when a defendant is physically present before the court, the bonding company may not remove the defendant from the custody of the court without the court’s permission. The court may incarcerate the defendant, dismiss the charges, increase the amount of bond, amend the bond restrictions, or continue the bond to another court date as long as they have not fundamentally changed the conditions of the bail contract that would significantly alter the conditions under which the agreement entered.
What the New Law Means for Bail Bondsmen
This last part is key to the importance of the new statute. By allowing the defendant to reach an agreement with the state prosecutor, the court has significantly altered the conditions of the contract. The bonding company is no longer guaranteeing the appearance of an innocent defendant accused of a crime, but instead is being forced to ensure the appearance of a guilty party who has acknowledged guilt and is simply waiting to find out what the punishment will be.
The defendant is, in essence, no longer the same party to which the bonding company has agreed to take custody. He has admitted guilt and is simply waiting to hear what the court intends to do with him. The court, by accepting the plea, has reasserted their physical custody and has effectively removed the defendant from the custody of the bonding company.
Nowhere is the confusion about the duration of bond better exemplified than in the order by the Davidson County Courts in reaction to the passage of this statute. The court has ordered that a bonding company notify the defendant of its intent to revoke a bond or suffer having its bonding privileges suspended in those courts. The court confuses “bond revocation” with “bond termination” and heavy-handedly attempts to circumvent the intent of the legislation by either willfully or ignorantly confusing the two terms.
As this new statute makes its way through the trial and appellate courts, it will be interesting to see how the courts rule and what is ultimately to be decided as to the legal expectations of the duration of a bail bond.