Criminal Law

Revoking Bail - Go to Jail & Lose Your Bond

By Janet Portman

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Getting released on bail can be complicated and costly, but at least you're out of jail at the end. This freedom comes with a lot of strings attached: If a defendant violates bail conditions, fails to show up in court, or gets arrested again, bail is almost always revoked, which means the defendant is taken into custody. After revocation comes forfeiture of the bail money or bond. So, the defendant loses his freedom and might possibly lose his money. If a defendant's violation is explainable, there's a chance that forfeiture can be set aside.

Revoking Bail - Back to Jail

If a defendant "jumps bail" or fails to appear, bail will be revoked. At that point, the defendant has lost the right to be free before trial. The court can issue an arrest warrant for the failure to appear (FTA). In most states, failing to appear is a crime. So, the defendant who jumps bail ends up with the original criminal charge plus an additional FTA criminal charge. The warrant remains active until the defendant's capture.

A defendant's bail can be revoked for other reasons, including:

  • committing a crime while released, even in the absence of a conviction for that crime, and
  • violating any other condition of bail, such as failing to stay away from the crime victim.

For instance, in O.J. Simpson's armed robbery case in Las Vegas, one of the conditions of his release was to not contact, directly or indirectly, any other defendants or witnesses. While out on bail, he tried to convince his bondsman to get a message to another defendant. The prosecutors successfully argued that O.J. Simpson violated the terms of his bail. The judge agreed and he was taken back into custody and returned to jail.

Bail Revocation Process in Federal Court

Both federal and state courts have procedures for revoking bail. In federal court, the Bail Reform Act of 1984 controls the process. If a defendant commits a crime while out on bail, there's a presumption that no conditions of release can keep the community safe. The defendant is given an opportunity to rebut or overcome the presumption, but he does not get a full-blown trial. It's up to the judge to decide whether to revoke bail completely or impose new or additional conditions of release.

Along with bail revocation, other penalties under the Act for violating release conditions or failing to appear include bond forfeiture, fines, and additional prison time, which is tacked on to the end of any other prison time received by the defendant.

Bail Revocation Process in State Courts

State laws vary as to the bail revocation process. Nevertheless, all state laws allow for revocation of bail if a defendant violates a condition of release, fails to appear, or commits another crime while on bail. States also vary as to the prosecutor's burden of proof when arguing for revocation: Some states, such as Vermont, require proof that meets the familiar "preponderance of the evidence" standard; whereas others, such as Massachusetts, employ the more stringent "probable cause to arrest" test.

Bond Forfeiture

Federal rules, as well as virtually all state laws, allow for bond forfeiture when a defendant fails to make a court appearance. Along with that, the federal courts and most states authorize bond forfeiture for a violation of a release condition.

When a defendant's bail is revoked, the court's next step is to forfeit the bail bond. In other words, any money or property put up to secure the defendant's release is turned over to the court. In most states, procedures for bond forfeiture are set by law. An entry of a forfeiture order is usually mandatory.

Forfeiture of a bond requires notice be sent to the defendant and the surety, most likely a bail bondsman. Generally, before a forfeiture becomes final, the bail bondsman is given a certain period of time to bring the defendant in or explain the steps taken to locate a missing defendant. Bail bondsmen and their employees sometimes go to great lengths to bring in an absconding defendant, because if they can't, they will end up paying the court the required bail.

Some state laws give the defendant or bail bondsman a chance to explain the reason for the violation and possibly avoid the forfeiture. These reasons are sometimes known as mitigating factors, and can include a defendant's illness, physical disability, or death. Being in jail in another location isn't a legitimate mitigating factor.

Getting Bail Reinstated: "Remission"

Even after bond has been forfeited, it's still possible to have it set aside through "remission." A bail remission motion is a request to refund money that was forfeited. Generally, these motions must be filed within a certain time, such as one year, from the date of forfeiture. Whether to grant relief from a forfeiture is usually within the trial court's discretion. Judges consider whether justice requires the forfeiture. Typically, a forfeiture can be set aside if:

  • the defendant wasn't aware of the specific condition violated
  • the defendant's violation wasn't willful
  • the government incurred no expense in attempting to locate the defendant, or
  • the government wasn't prejudiced or damaged by the violation.

Under federal and some state laws, a forfeiture can be set aside in whole or in part.

If a defendant is out on bail and wants to stay that way, showing up in court and following the conditions of release are crucial. The costs of one missed court date or violating a condition of release are the defendant's financial and personal freedom.

Questions for Your Attorney

  • If a defendant is on bail for a federal drug offense, gets charged with a state drug offense and has his federal bail revoked, can he get bail for the state crime?
  • Is being called up for military service a valid mitigating factor?
  • Is forfeiture appealable?
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