Li Law Group
Li Law Group is a law firm in Omaha, Nebraska. Our attorneys have successfully defended many clients with criminal charges. We are attentive to hear our clients and understand their goals. We develop and prepare our cases to achieve our clients' needs and wants. Through trust, talent, efforts, and teamwork, we zealously represent our clients. If you have need a criminal defense lawyer, call us at 402.391.2486. Our office is located at 8424 West Center Road Ste 108, Omaha, Nebraska.
There are many different types of “bonds” in the justice system. They all differ in terms of how they work, and their specific purpose and procedures, but the general idea is that a bond is a sum of money deposited with the court to ensure that a person or entity abides by the order(s) of the court. Failure to obey the court’s order could result in a loss of that money in addition to other negative consequences.
When most people hear the word “bond” they think of criminal cases. While this is probably the most common use of bonds, it is not the only use. Bonds can also be used in immigration, juvenile, probate (link to 30-2640), or other types of civil cases, even sometimes including divorce or child custody cases. In each instance, the goal is usually the same: to ensure that a party has made a financial guaranty that they will fulfill their obligations with the court. This article deals primarily with bonds in the criminal context, where they are used most frequently - but know that a bond can sometimes be used in a variety of settings and circumstances.
Bond vs. Bail
Many people use the word “bond” interchangeably with the word “bail.” There are potentially important differences between the meaning of these words, especially in other states, but for the purposes of this article they can be thought of as the same thing.
State vs. Federal
The federal criminal system does not utilize cash bonds. Instead, a federal judge will determine whether the defendant should be released from custody, or not. The payment of money to the court has nothing to do with such a release. State courts on the other hand, including Nebraska, do allow for cash bonds in order to secure the release of a defendant pending resolution of their charges. Therefore, this article focuses on state bonds.
Defendants have several opportunities to secure their release on bond throughout their case. The first is generally at Arraignment (LINK) where the defendant first appears before the court to indicate how they would like to proceed. Oftentimes, the issue of bond is addressed for the first time here. In felony cases, the issue of bond may also be addressed at the Preliminary Hearing (LINK) alongside other issues before the court. The court can also review a defendant’s bond periodically through the progression of their case. This is often initiated by the defendant who was unsatisfied with how the court previously ruled on their bond – either because it was denied or because it was too expensive for them to pay. However, a review of bond can also be initiated by the prosecutor if they feel that the terms of release have been violated, or if new facts come to light which may change the court’s opinion.
The Nebraska legislature has instructed the court as to what factors it should consider in allowing or disallowing bond, and in setting the amount of such bond. (LINK 29-901). Those factors can be roughly summarized as: 1) is the defendant a flight risk? and 2) is the defendant a danger to the community? A defendant is permitted to present evidence and make arguments as to these factors. However, the defendant cannot rely on the full formality of trial rules and procedures, and a significant amount of discretion rests with the judge in making such determinations. As a separate issue, if you feel that a judge or attorney has a legitimate conflict of interest in your case, you may want to consider recusal (LINK). Fortunately, an adverse ruling is not necessarily final. A defendant can ask that the court review its bond determination periodically throughout a case.
Immigration status is not one of the factors specifically stated in the statute governing bonds in Nebraska (LINK to 29-901). However, in practice, immigration status often has significant consequences for two main reasons:
Becoming a US citizen requires a lengthy period of scrutiny and compliance with numerous financial, moral, and administrative requirements. Therefore, a person who has obtained US citizenship has almost certainly invested a great deal of time and effort in achieving that status, and has been under scrutiny by the federal government for years. By contrast, a person who does not have fully permanent status in the US as a citizen may not have been as thoroughly vetted, and perhaps more importantly, may have less to lose if they were to flee the court’s jurisdiction. Fairly or not, defendants who lack US citizenship are often considered a higher flight risk than a similar defendant who does have US citizenship.
Even if the court decides to grant an affordable bond for the defendant’s release, it can be a moot point due to federal restrictions. When a criminal defendant is not a US citizen, they may be subject to scrutiny at both the state and federal levels. If the federal government makes one decision and the state makes the opposite decision, the federal government generally prevails. In the context of bonds, this means that even when a state court has decided to allow bond, the federal government may disagree. In that case, the federal government puts a “hold” on the defendant, and effectively blocks their release. This can happen even if the defendant has already paid the bond and is in the process of being released. No decision by the state court can overcome the federal hold, and the defendant is likely to be held during their case unless bond can be secured at the federal immigration level as well. (LINK?)
PAYING FOR A BOND
In cases where the court has set a dollar amount for bond, there are generally two ways that the payment can be satisfied: 1) ten percent of the bond amount is paid; or the entire amount of the bond is paid. So, if bond is set at $10,000 a defendant could pay $1,000 (ten percent of ten thousand), or pay the full ten thousand dollars. Why would anyone choose to pay the full amount? If you eventually succeed in securing a return of the bond money, the court will typically keep ten percent of what you paid under option number one (the cheaper route). In our example, you would be entitled to a bond refund of $900. However, if you paid the full amount under option number two, you would typically be entitled to a refund of the full ten thousand dollars.
The defendant themselves can try and arrange for funds to be transferred to satisfy a bond requirement, but the logistics of making such arrangements can be difficult while incarcerated. For this reason, it is often very helpful to have friends or family who are able to assist in obtaining the funds necessary for release, and in making sure that the administrative procedures are followed. Of course, an attorney can be helpful in navigating this process, and may even be able to help facilitate payment. However, attorneys are not allowed to help secure a client’s release using their own funds, and must rely on money paid to them for that purpose.
In cases involving illegal proceeds or financial crimes, some or all of the defendant’s funds may be seized by the prosecuting authority and therefore be unavailable for use in bond payments. In cases such as this, competent legal representation is doubly important in navigating these potentially complex legal issues.
BOND REFUNDS, OR NOT
Bond money paid into the court will typically just sit in an account until the case is resolved. At that point, the money will be paid out to the defendant. However, there are some important exceptions to this:
Violation of Bond. Bonds often come with strings attached. Common examples include a restriction on leaving the county or state, or contacting certain persons. If the court feels that a defendant is not fulfilling their obligations to the court, they can deem the bond forfeit or revoked.
Forfeiture vs. Revocation. There is an important difference between how the court chooses to handle a violation of bond. If the court “Revokes” bond, that means that the defendant must be taken into custody and, to a large extent, it is as if the bond had never been granted in the fist place. Forfeiture, on the other hand, means that not only does the defendant have to go back into custody of the court, but that the funds now belong to the court as payment for having violated its terms. In this scenario, a defendant is typically no longer entitled to a return of those funds.
Deductions. Even when a defendant appears to be entitled to a return of their bond money, certain fees and expenses are often deducted by the court. Frequently, this will include the court keeping ten percent of the money actually paid to the court if only a portion of the bond was paid (see above discussion for details). In addition to this, certain court costs, fines, restitution, or other deductions may be made from the bond money prior to its release. This can even include liens from unrelated cases such as child support. Some new legislation aims to preserve some of a defendant’s rights to bond money, but an experienced attorney can assist in getting a favorably worded ruling from the court which seeks to maximize the return of any bond money. In cases with serious charges, the difference can be substantial.
Assignment. Bonds will be held by the court typically until the case is resolved. Once a final order has been entered on the case and all the defendant’s relevant obligations to the court have been met, the bond will then be paid to the defendant by default. This is the case even if it was someone else who initially paid the money to the court. If the defendant wishes for the bond refund to go to someone else when it is released, they must execute a bond assignment and file it with the court. Again, an experienced criminal law attorney can help you navigate who may be entitled to bond money if there are more than one persons making a claim to it.