A summary of the little known and seldom understood laws
that give bondsmen and their agents the right to arrest.
Over the years there has been a lack of information about bondsmen
and their agents, as to their rights and responsibilities.
The purpose of this pamphlet is to help reduce this confusion
and inform law enforcement personnel in their interactions
with bondsmen and their agents.
The practice of surety bail dates back to Common Law in England.
It would take pages to explain all the twists and turns that have
brought it to the system we use today. However, the principle behind
bail has stayed the same; it is designed to place a burden on
the accused to insure his appearance at trial. This burden can be
easily met by the accused making all court dates.
Modern day bail statutes vary somewhat from jurisdiction to jurisdiction, but overall they have changed little over the last two centuries.
In discussing the purpose of bail, Justice Robert II. Jackson
of the Supreme Court in Stack v. Boyle, 342U.S. 1,7-8 (1951) said;
** The practice of admission to bail, as it evolved in Anglo-American law,
is not a device for keeping persons in jail upon mere accusation until
it is found convenient to give them a trial. On the contrary, the spirit
of the procedure is to enable them to stay out of jail until a trial
has found them guilty. Without this conditional privilege, even those wrongfully accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for
evidence and witnesses, and preparing a defense...Admission to bail always
involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice. **
The Bail Bond:
A bail bond, when written by a bondsman( surety ), is a contract between
the court on the one hand and the accused on the other. Under the contract the accused are released into the custody of the surety on their promise to pay the court a stated sum of money if the accused fails to appear before the court in accordance with its terms. However, the court is not obligated to accept the bail if,
*the court lacks confidence in the suretyís purpose or ability to
secure the appearance of a bailed defendant*
The accused are released to the custody of the bondsman only
if the court believes the bondsman can and will
insure the appearance of the accused before the court.
Origin, Basis, and Scope of The Right to Arrest:
The case that set the standard for the bondsmanís right to arrest,
was the decision of the Supreme Court of the United States in
Taylor v. Taintor 16 Wall, 366 (1873). Here is the court decision, in part.
** 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 him
and deliver him up in their discharge, and if that
cannot 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
arrest him on the Sabbath, and if necessary, may break and
enter his house for that purpose. The seizure is not made by
virtue of new process. None is needed.
It is likened to the re-arrest, by the sheriff, of an escaping prisoner. **
The authority to arrest a person comes from the bail bond contract.
The bail bond contract puts conditions on the accused.
The conditions include the right to arrest and transport whenever
the bondsman feels the accused may have or is about to breach
the contract. The bondsman needs no other reason to revoke the
bail and return the accused to the custody of the sheriff.
Because bail bondsman are businessmen who often underwrite
other insurance polices other then those for bail, they often
cannot leave their business to pursue the accused when he fails
to appear in court. And because the bondsman risks forfeiture of
the entire amount of the bond to the court, the bondsman must make
an attempt to recover the accused for appearance in court.
Many bondsmen contract with a bail enforcement agent or fugitive
recovery agent to execute the recovery of the bail fugitive.
As the agent working on behalf of the bondsman the bail enforcement
agent retains all of the rights afforded the bondsman in executing
the arrest. Professional bail enforcement agents MUST be able to
show proof of their employment with the bonging agency and MUST have
a copy of the bail bond contract with them at the time of the arrest.
The statutes governing cash bonds or surety bonds can be found under
The Code of Criminal Procedure, chapter 765.
This chapter covers many aspects of bonds and its different forms.
The statute which recognizes the bondsmanís right to arrest in Michigan
is MCL 765.26.
This area of the law is seldom covered in criminal justice courses,
so I encourage everyone to review it.