What Is Bail Forfeiture?

Posting bail allows a defendant to remain free pending the outcome of his trial. However, bail comes with an obligation to attend all court proceedings, and may require other conditions to be met as well. If the defendant fails to appear in court or otherwise violates the terms of the bail agreement, the court can declare the bond forfeited. What happens next is determined by state law and the reason for the forfeiture.

Bond Forfeiture Causes

Bail forfeiture refers to a legal action that demands the funds pledged as security for the accused's good behavior and court attendance be paid to the court. This might occur if a defendant misses a scheduled court appearance, for example. The length of time from when a court appearance is missed and the order for bond forfeiture depends on the jurisdiction and the nature of the crime involved. As a practical rule, however, once the defendant is recaptured, he will be returned to jail to await trial and have his bail revoked.

Required Notifications and Next Steps

Most states have laws that require the court to notify both the defendant and the surety, or guarantor, of the posted bail amount. Once that happens, whoever provided the bond that allowed the defendant to remain free generally has four options:

  • Produce the defendant
  • Provide the court with an acceptable excuse for the defendant's absence
  • Pay the forfeited bond
  • Face the consequences of failing to do any of the above

In many cases, a third-party posts the defendant's bail, whether it's a family member, friend or professional bail bondsman. When a bond forfeiture occurs, the court takes those funds, and it's up to the surety to try and recoup the money lost from the defendant. A bail bondsman may request that the court delay bail forfeiture so it can hire a bounty hunter to find the defendant who skipped bail and return him to the court.

Remission of Forfeiture

In many jurisdictions, the expectation is that once the bond is forfeited, the funds are gone forever. However, that isn't always the case. According to The Legal Aid Society, you can use a process called remission of forfeiture to apply for the money to be returned. This must be done in writing within a year of the bond being forfeited. If the case was a felony, the request is made to the court that issued the original order requiring the surrender of the bond. If the bond forfeiture resulted from a misdemeanor, the appeal is heard by a local court judge in your county. You likely will need a very good excuse for failure to appear, such as a serious illness that left you hospitalized. State rules on this vary, but many leave remission of forfeiture decisions up to the discretion of the court.

Pay the Penalty

In some jurisdictions, bail forfeiture also refers to a method of settling a case without admitting guilt. Generally, only an option for minor offenses, this allows the accused to pay and then forfeit the bail amount determined by the court. It effectively allows the defendant to avoid a trial or admission of guilt while simultaneously agreeing to pay the bail amount as a penalty for the offense.