Bond forfeiture is the encashment or enforcement of a guarantee by its beneficiary under the terms of a guarantee agreement. Generally, bond is an amount set by the court, in either cash or property that is posted to ensure the arrestee/defendants appearance for court actions. Bail bond forfeiture results when a court appearance is missed, and the company or person who put up the bond is required to pay the defendant’s outstanding bail amount. A forfeited bond becomes the property of the jurisdiction overseeing the case, and it cannot be refunded.
In criminal cases bail bond forfeiture arises when a defendant, whose appearance in court has been guaranteed by the posting of a bond, fails to appear. In civil cases forfeiture of bond is the deprivation or destruction of a right as the consequence of the non performance of some obligation or condition.
If a defendant released on a bond subsequently misses his or her court date, the judge can order a bond forfeiture hearing. During the hearing, the judge will determine whether the defendant had a good reason for failing to appear in court. If the judge determines the defendant did not have cause, he or she will ordinarily issue a warrant for the defendant’s arrest by a certain date. If the defendant cannot be located by that date, the court will move forward with bond forfeiture. If a defendant has put up collateral to secure a bond, the collateral can be sold to obtain cash to pay the bond once a bond forfeiture has been ordered.
Forfeiture is appropriate for violation of a release condition only if the parties have agreed to the condition. A bail bond is a contract between the government and the defendant and his/her surety. Thus, forfeiture would not be appropriate for breach of a condition imposed by the court without notice. [United States v. Vaccaro, 51 F.3d 189 (9th Cir. Nev. 1995)]
Idaho Code Ann. § 19-2927 and Idaho Crim. R. 46(e)(5) require the court clerk to mail a written notice of forfeiture to a bail bond surety within five days after the court enters an order forfeiting bail for a defendant's failure to appear. Noncompliance with the notice requirement results in exoneration of the bond. [State v. Castro, 145 Idaho 993 (Idaho Ct. App. 2008)]
Apart from civil and criminal law context, companies’ actively mining coal must post a bond per acre mined. If the mine operator fails to reclaim the land, the bond is forfeited to the Division of Mines and Reclamation.
The following is an excerpt from a State Statute (Idaho) on Bond Forfeiture:
I.C.R. Rule 46 (h) Forfeiture and enforcement of bail bond.
(1) The court which has forfeited bail, upon a motion filed within one hundred eighty (180) days after an order of forfeiture, may direct that the forfeiture be set aside, in whole or in part, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. In ruling upon such a motion, the court shall consider all relevant factors, which may include but not be limited to the following:
(A) the willfulness of the defendant's violation of the obligation to appear;
(B) the participation of the person posting bail in locating and apprehending the defendant;
(C) the costs, inconvenience, and prejudice suffered by the state as a result of the defendant's violation of the obligation to appear;
(D) any intangible costs;
(E) the public's interest in insuring a defendant's appearance;
(F) any mitigating factors;
(G) whether the state exhibited any actual interest in regaining custody of the defendant through prompt efforts to extradite him;
(H) whether the bonding company has attempted to assist or persuade the defendant to expedite his return to Idaho by exercising his rights under the Interstate Agreement on Detainers, Idaho Code § 19-5001 et seq.; and
(I) the need to deter the defendant and others from future violations.
(2) If the court sets aside the forfeiture, in whole or in part, it may reinstate the bail, or the court may exonerate the bail, or the court may recommit the defendant to the custody of the sheriff and set new bail or may release the defendant on his or her own recognizance. The court shall, within five (5) business days, give written notice to the person posting the bail or, if the bail consists of a surety bond, to the surety or its designated agent of the action taken by the court.
(3) After the court enters the order forfeiting bail, the clerk must, within five (5) business days, mail a written notice of forfeiture to the last known address of the person posting the undertaking of bail or, if the bail consists of a surety bond, to the surety or its designated agent. If the defendant does not appear or is not brought before the court within one hundred eighty (180) days after the entry of the order forfeiting bail, the clerk, upon receiving payment of the forfeited bail, shall remit such forfeiture to the county auditor for distribution and apportionment as provided by I. C. § 19-4705.