Bail Law of New York: Bail Enforcement Manual

By Xlibris US

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• Language: English
• Publisher: Xlibris US
• Release date: Sep 29, 2006
• ISBN: 9781469115856

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Copyright © 2006 by Joseph D. Best.

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

To order additional copies of this book, contact:

Xlibris Corporation

1-888-795-4274

www.Xlibris.com

[e-mail]

30729

Contents

Introduction

CHAPTER I

HISTORY OF BAIL

History of Bail

Early American Bail

Modern American Bail

CHAPTER II

CIVIL AND CRIMINAL LAW

LAW OVERVIEW

CIVIL AND CRIMINAL LAW

CHAPTER THREE

INSURANCE AND SURETY

INSURANCE AND SURETY

ELEMENTS OF SURETY

Judicial Bonds

JUDICIAL BONDS

DEFENDANT’S BONDS

EXTRADITION BONDS

CHAPTER four

THE LICENSING AND TRAINING

OF

BAIL-ENFORCEMENT AGENTS

THE LICENSING AND TRAINING OF BAIL-ENFORCEMENT AGENTS

CHAPTER five

FUNDAMENTALS OF CONTRACTS

FUNDAMENTALS OF CONTRACTS

BAIL FORMS

UNENFORCEABLE CONTRACTS

ENFORCING THE CONTRACT

BAIL REARREST

ENTERING AND OCCUPYING STRUCTURES

SEIZING THE DEFENDANT

DEFENDANT(S) IN CUSTODY

CHAPTER SIX

THE BAIL-ENFORCEMENT BUSINESS

REPORT WRITING

The Bail-Enforcement Business

ETHICS FOR THE

BAIL-ENFORCEMENT AGENT

BAIL-ENFORCEMENT RECORDS

CHAPTER SEVEN

FELONY AND MISDEMEANOR CRIMES

ARREST AND RELEASE

MISDEMEANOR AND FELONY

ARREST AND RELEASE

THE CRIMINAL COURT

BAIL

PRETRIAL RELEASE

COMMERCIAL BAIL

CHAPTER EIGHT

THE BONDSMAN’S RESPONSIBILITY

THE BONDSMAN’S RESPONSIBILITY

NEW YORK CITY

POLICE DEPARTMENT

BAIL-BOND GUIDELINES

USE OF PHYSICAL FORCE

AND

USE OF DEADLY FORCE

WEAPONS AND FIREARMS

DEFENSE JUSTIFICATION

CHAPTER nine

THE COURTS AND

THEIR JURISDICTION

THE COURTS AND

THEIR JURISDICTION

GLOSSARY OF BAIL TERMS

NEW YORK STATE

BAIL-ENFORCEMENT LAW

NEW YORK STATE

BAIL-ENFORCEMENT LAW

SURRENDER OF DEFENDANT

JUSTIFICATION

REVIEW QUESTIONS

REVIEW QUESTION—ANSWERS

NEW YORK STATE

Penal and Criminal Procedure

BAIL-RELATED LAWS

Bail-Related Laws

bail and recognizance

federal rules

criminal procedure

SAMPLE FORMS

PART II

THE UNIFORM CRIMINAL EXTRADITION ACT and the

BAIL BOND AGENT

CALIFORNIA UNIFORM

CRIMINAL EXTRADITION ACT

NEW YORK STATE

CRIMINAL PROCEDURE

DELAWARE TITLE 11

About

Qualified Immunity

The Civil Rights Act of 1871

Includes

42 U.S.C. 1983

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Endnotes

April 1, 2001, the New York legislature enacted a bounty hunter law

in response to a national outcry for better control over bounty hunters.

THE GENESIS OF NEW BOUNTY HUNTER REGULATIONS

1997 Aug 31, In Phoenix, Az., bounty hunters in search of a bail jumper killed a couple that apparently knew nothing about the sought bail jumper. Chris Foote (23) and Spring Wright (20) were killed by 5 bounty hunters. Matthew Brackney (20), his father David Brackney (45) and Michael Martin Sanders (40) were in custody and 2 others were sought by authorities. Arizona laws allow bounty hunters to break down doors and use guns to bring bail jumpers back to jail without a court order, warrant or license. There are an estimated 7,000 bounty hunters nationwide. Brian Jay Robbins and Ronald Eugene Timms were arrested on Sep 3.

Bail-enforcement guidelines are an independently produced publication of the Victim Offender Reconciliation Program of New York (VORP) Inc. Every effort has been made to provide complete and accurate information. However, neither the author nor VORP Publications shall be liable for any loss or damage caused or alleged to be caused directly or indirectly by this book. Corrections and/or updates will be published in future editions.

© 2002 by VORP of New York, Inc.

A 501 (c)3 Nonprofit Corporation

Introduction

New York Rewrites Bounty Hunter Laws

Hindsight from The New Gun Week April 1, 1998

Lawmakers Eye New Bounty Hunter Laws

by Joseph P. Tartaro

Executive Editor

Midnight Run has become a sort of modern cult film, but for all its interesting characterizations—played by some of Hollywood’s most capable regulars—and its twisting plot, it is basically a bounty hunter movie. While there are several bounty hunters of varying degrees of virtue involved in this flick, as well as gangsters who want to kill the witness who jumped bail, the main bounty hunter, played by Robert De Niro, is a good guy, according to modern-film morality.

Movies and television have frequently portrayed bounty hunters as good guys, particularly with sympathetic actors like the late Steve McQueen in such a role. Some bounty hunters, or bail-skip retrievers as they are sometimes called, are, indeed, good guys, providing a necessary social service. I’ve known some of them, and generally they are, not surprisingly, progun. Before the Texas right-to-carry law was passed, bounty hunters I knew in Texas were routinely carrying concealed, illegally, but of necessity.

But not all people pursuing bail jumpers for money are quite as good or glamorous as Hollywood would like to portray them. Some of the men and women working in tracing bail jumpers today are ex-convicts or have otherwise been in trouble with the law.

Yet these bounty hunters enjoy broader powers to arrest fugitives than police officers do.

Legitimate Purpose

Bounty hunters are the agents of bail bondsmen whose clients have skipped bail. They may be regular employees of the bonding company, or freelance independent agents paid a commission if they find the fugitive and return him to custody.

Decisions whether to release a person charged with a crime pending trial after the initial arrest and charge are made by a judicial officer in the jurisdiction, after considering whether the defendant poses a risk of flight. Frequently, a money bond, or bail, is imposed on the defendant to ensure his or her return appearance in court.

When a defendant cannot afford to pay the bail bond, he or she will turn to a bonding company, or bondsman, who will post the necessary bail for a percentage, usually 10 percent. Part of the bond contract between the borrowing defendant and the bond company is a clause permitting the defendant’s recapture by whatever means necessary should he or she fail to appear for trial. If the defendant fails to appear for trial or court hearings, the bonding company will lose the full amount of the bond unless the defendant is traced, apprehended, and returned to custody.

The bonding agent, who provides a legitimate service both to the courts and community, as well as the defendant, thus, has an incentive to assure the availability and appearance of the defendant and will pay a bounty, or reward, for that appearance. The tracing and forcible recapture of the defendant is frequently accomplished with little or no consideration for the rights of the defendant, or any other person, including innocent bystanders.

The laws governing bounty hunting have their origins in the nineteenth century. According to some legal experts, these laws have not been updated in the same fashion as those governing sworn peace officers, or even privatized law enforcement. In many areas—both under federal and state jurisdictions—bounty hunters have been allowed wider latitude than their specific police functions would indicate necessary. As a result, there has been limited civil redress for those whose rights are violated.

Incidents Recounted

Several recent incidents have contributed to both federal and state lawmakers considering new legislation related to that profession.

Last year, there was the notorious shoot-out in Arizona involving five men who almost escaped prosecution when they claimed to be bounty hunters in pursuit of a wanted man. Prosecutors almost let them go before it was discovered that robbery was the real motive for the home invasion in which the occupants were murdered. Instead, they are now awaiting trial.

Many people who followed that story couldn’t understand why armed, masked bounty hunters might have been allowed to get away with breaking into someone’s house, searching, damaging property, and injuring or killing innocent people. The fact is that special laws allow bounty hunters to act in ways that are prohibited by law to sworn peace officers.

They can legally break into a home without a warrant or probable cause and can violently arrest, shackle, imprison, and even transport suspects across state lines with impunity, said Leslie Hagin, legislative director of the National Association of Criminal Defense Lawyers (NACDL), during recent congressional hearings on proposed legislation.

The leading federal proposal, HR-3168, the Citizen Protection Act of 1998, is a bipartisan bill, introduced by Rep. Asa Hutchinson (R-AR) and cosponsored by Rep. Charles Canady (R-FL), chairman of the House Constitution Subcommittee, and Rep. John Conyers (D-MI), ranking Democrat on the House Judiciary Committee.

One witness at the March subcommittee hearing, Jrae Mason, told congressmen this story.

She had seated herself on the front step of her New York City apartment building on a summer night in 1994, when she was suddenly seized, handcuffed, and put in the backseat of a southbound car by bounty hunters who had mistaken her for an Alabama bail jumper.

At one point during the nine-hundred-mile journey south, they threatened to lock her in the trunk if she would not stop protesting. She testified that she traveled in fear as they drove on back roads with little other traffic.

Three days after she was abducted, the bounty hunters acknowledged their error and sent her home on a bus with $24.

Mason, who was later awarded a $1 million civil award by a federal jury, was one of four witnesses who told lawmakers chilling stories of mistaken identity and abuse of power at the hands of bounty hunters.

They were not the only witnesses. Jerry Watson, legal counsel to the National Association of Bail Insurance Companies, also spoke. He said that about 7 percent of four million defendants whose appearances in court are guaranteed by bail bonds fail to appear and become targets of bounty hunters.

The NACDL testified in support of the changes that would be made by HR-3168. These include

•   Subjecting bail-bond sureties and bounty hunters to liability for violations of federally protected civil rights;

•   Consider any bounty hunter, whether an independent contractor or employee of a bail-bonding company, to be agents of the bondsman for purposes of liability, and require liability insurance for bail-bond companies who hire bounty hunters; and

•   Establish a duty on the part of each bail-bonding company and bounty hunter who intends to gain custody over a person in a different state to inform local authorities of their intent, a step designed to reduce the possibility that an innocent person’s home will not be broken into or an innocent person taken into custody.

Similar legislation is under consideration in the New York legislature, as well as in other state capitals. The New York state proposal gained impetus recently because of an incident that resulted in the death of a Buffalo police officer last month.

In that case, five bounty hunters from Maryland were in Buffalo in pursuit of a fugitive from a drug-related charge. Just about dawn, they contacted local police from their van, which was following a public bus; their quarry was on the bus and believed to be armed.

As police responded, the fugitive leaped from the bus with police and bounty hunters in pursuit. An officer who followed the fugitive as he dashed across an expressway in the lowlight hours was struck and killed by a car southbound at expressway speed.

The fugitive was later apprehended by Buffalo police and charged with manslaughter. No charges were placed against the bounty hunters, although there was much criticism of the way they handled themselves in the incident. The Buffalo police suggested that advance warning of their search and intent by the bounty hunters might have prevented the death of the officer and contributed to the apprehension of the fugitive under different circumstances.

Tracing bail skippers is not a profession for the timid at heart. In most cases, bounty hunters have to expect resistance from dangerous fugitives and, as in Midnight Run, the possibility that even more dangerous criminals may not want the fugitive to ever get to court. The skip tracers are frequently armed with guns, and because of the crazy quilt of concealed carry laws, often illegally when they cross state lines.

If society wants to assure the continued services of the bail-bond system and those who must enforce it, they should also support the concept of federal laws that provide interstate pistol license reciprocity for bonding agents and other citizens who are legally allowed to carry concealed weapons in their home states.

CHAPTER I

HISTORY OF BAIL

History of Bail

Necessity is the mother of invention, at least where bail is concerned. When a solution to the shortage of traveling magistrates was needed, bail emerged as a form of surety for accused persons subjected to lengthy periods of jail before trial. The bail system relied on personal surety, which was often relatives, friends, or neighbors of the accused. In early days, this was an excellent system because when the accused failed to appear, the surety was held hostage until the accused could be found. Where the bail amount was equal to the monetary penalty, escape by the accused meant the surety was responsible for payment. This was incentive for the surety to make sure the accused appears for trial.

The Anglo-Saxons are responsible for the invention of bail. This monetary fine system, also known as the bot system, was meant to guarantee both the appearance of the accused and the payment of fines. This system allowed the accused to be released into the custody of his family or friends. Should the accused fail to appear, he was presumed guilty of the charge.

After this change, bail was increasingly restricted, primarily because corporal punishment often encouraged the accused to flee. The resulting lack of availability of bail led to the Statute of Westminster in 1275. This statute defined who was bailable; however, the statute was complicated and, thus, confusing. Nevertheless this statute would determine bail law for the following five centuries.

Under the reign of King Edward I, some of the greatest changes in English constitutional law were enacted. The intent was to strengthen the power of the crown by judicial and clear definition of its privileges. The movement started with the First Statute of Westminster enacted in 1275, which was directed primarily to the improvement of administrative details, and which was accompanied by a grant to the king of permanent customs revenue on imports and exports. This source of income for the crown soon became more valuable than the old feudal taxes on land.

The Statute of Winchester may be considered the second great legislative act of 1285. Passed under the reign of Edward I, it was mainly concerned with the keeping of the peace in the realm. It revised the organization and armament of the militia and provided a useful police force for the repression of disorder and robbery. Basically, this statute may be considered as one more device passed during Edward’s thirty-five-year reign aimed at strengthening the power of the crown.

Several centuries later, early in the seventeenth century as a matter of fact, King Charles I did not receive funds from Parliament. The king required loans from several noblemen to make up this short fall. Those who refused were jailed without bail. Several knights, who had been imprisoned recently for the same offense, filed a writ of habeas corpus. They argued that they could not be held indefinitely without either bail or trial. In court, it was argued that the best interest of the security of the kingdom and the interest of the people rested in the king, continuing to exercise his sovereign authority to imprison. The intent of the Petition of Right of 1628 was protection of the people against abuse by the king, the courts, and the sheriff. This still left the courts and the sheriff free to exercise their discretion.

When the discretion of the king, courts, and the sheriff became abusive, Parliament passed the Habeas Corpus Act of 1677. The act stated

A magistrate shall discharge the said prisoner from imprisonment taking his or their Recognizance, with one or more Surety or Sureties, in any sum according to their discretion having regard to the Quality of the prisoner and the Nature of the offense, for his or their Appearance in the Court of the Kings bench unless it shall appear that the Party (is) committed for such Matter or offenses for which by law the Prisoner is not bailable.

While the Habeas Corpus Act of 1677 improved court administration, it didn’t guard against excessive bail. Therefore, even if the crime is bailable, the bail could be set high enough to keep the accused in custody. The U.S. Constitution was drafted to protect the accused from excessive bail. The bail clause in the Eighth Amendment attempts to protect the accused from exorbitant bail.

Right of Surety to Arrest:

Medieval England had originally made the tithingman or the whole township responsible for the appearance of the accused in court. The first federal-case law effecting bail forfeiture was Taylor v. Taintor decided by the Supreme Court in 1873:

When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize and deliver him up to their discharge, and if that can not be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may attest him on the sabbath, and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of