I. Applicable Statutes.
A. ALASKA CRIMINAL CODE, TITLE 12, CH. 30; CH. 60, SECTION 150; Ch. 70, SECTIONS 170 – 210.
B. ALASKA ADMINISTRATIVE CODE TITLE 3., PART 2, CHAPTER 23, ARTICLE 5, SECTIONS 23.745 - 23.859.
C. ALASKA COURT RULES GOVERNING THE ADMINISTRATION OF ALL COURTS, RULE 43, SECTIONS 1 – 7, (for bail forfeiture schedules).
D. ALASKA COURT RULES OF CRIMINAL PROCEDURE, PART IX, RULE 41
II. Licensing Requirements for Agents.
A. Alaska provides very minimal and simple qualifications for securing a "bail bond limited producer license", as set forth in 21.27.150. This license allows one to act on behalf of a surety insurer.
1. the individual’s business must be located within the state
2. the sole purpose of the business must be: a) to be appointed by, or b) to act on behalf of a surety insurer pertaining to bail bonds.
B. The regulatory body is the Insurance Department.
III. Notice of Forfeiture
ALASKA COURT RULES
RULES OF CRIMINAL PROCEDURE
PART IX. GENERAL PROVISIONS
RULE 41. BAIL
A. Notice of Forfeiture. The clerk shall send notice of the judgment of forfeiture to the defendant, defendant's attorney and the person pledging the security at their last known addresses. The notice must state that a hearing will be held on the forfeiture if timely requested pursuant to subparagraph (d)(3).
B. 45.75.133 establishes that upon citation of a violation for which a bail forfeiture amount has been set, the amount may be paid within 15 days (presumably from the receipt of the citation).
C. Failure to pay within 15 days, by mail or personal delivery to the clerk of the court, constitutes a class B misdemeanor.
IV. Allotted Time Between Forfeiture Declaration and Payment Due Date.
Alaska has provisions for bail forfeiture schedules, too detailed to list briefly, found in the RULES GOVERNING THE ADMINISTRATION OF ALL COURTS, RULE 43, SECTIONS 1 – 7. This rule provides a forfeiture schedule that is dependent upon the connected crime. Rule 43 also provides that each agency is responsible for its own forfeiture schedule, and that any agency or average citizen may request an amendment to a forfeiture schedule by proposing the amendment in writing to the chief justice or administrative director.
V. Forfeiture Defenses.
A. Alaska Court Rules of Criminal Procedure, Part IX, Rule 41 establishes that:
1. When the condition of the bond has been satisfied or the forfeiture thereof has been remitted, the court shall exonerate the obligors and release any bail.
2. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
B. 12.60.150 provides that sureties may be exonerated from bail liabilities in the manner prescribed by law (which is 9.40.210 - .200).
C. A limited number of defenses appear to be available in 9.40.210, dealing with "Exoneration of Bail."
1. Death of the defendant
2. Imprisonment in a penitentiary, or
3. Legal discharge from the obligation to be amenable to the process, exonerates the responsibility of bail.
D. 9.40.200 provides that if the arrest, delivery, or surrender occurs before judgement, bail is exonerated if the defendant:
1. Is arrested by a peace officer.
2. Is delivered to a peace officer.
3. Or surrenders to a peace officer.
Alaska Court Rules of Criminal Procedure, Part IX, Rule 41 sets forth the following provisions for remission.
Within one year after entry of judgment of forfeiture, a person who has given or pledged security may apply to the court for a remission, either in whole or in part, based on the return of the defendant with the assistance of the person who gave or pledged security or upon such other extraordinary circumstances as justice requires. The conditions of remission may include payment of expenses incurred for enforcement of the forfeiture and for securing the return of the defendant to custody.
VII. Bail Agent’s Arrest Authority.
9.40.200 sets forth that agents may, at any time or place before the defendant is finally charged,
A. Personally arrest the defendant, or
B. By written authority endorsed on a certified copy of the undertaking, empower a peace officer to arrest the defendant.
VIII. Other Noteworthy Provisions
A. 21.18.075 provides that the Department of Insurance "may require a surety or limited surety insurer to set up and maintain a reserve on all bail bonds or other single premium bonds without a definite expiration date," . . . "equal to 25 percent of the total consideration charged for the bonds that are outstanding as of the date of a current financial statement of the insurer."
B. ALASKA COURT RULES OF CIVIL PROCEDURE, PART XI, RULE 80, (Deals with the qualifications for sureties).
IX. Noteworthy State Appellate Decisions
A. Dealing with Bail forfeiture.
Michael F. LONIS, v. STATE of Alaska
Supreme Court of Alaska.
Feb. 18, 2000.
1. The state argued that courts should be allowed to grant bail forfeiture for reasons other than a defendant’s failure to appear, and that such was contemplated by the statute.
2. The state argued that when the legislature gave courts the power to impose non-monetary conditions of release, the legislature intended for courts to employ bail forfeiture as a means of enforcing these non-monetary conditions. The court held that there is no legislative history to support this state's assertion. In addition, even though the legislature amended AS 12.30.020 over thirty years ago to allow a court to impose non-monetary conditions of release, the legislature has never amended AS 12.30.060 to authorize bail forfeiture as a penalty for violating these non-monetary conditions.
3. The court notes that the drafters of the federal bail statute, §18 U.S.C. 3142, specifically intended that monetary bail be imposed only to assure a defendant's appearance. The court also points out that, were adopting the state's position, would have a major impact on the issuance of bail bonds.
4. Specifically, the court recognizes that commercial sureties, as well as family and friends, would suddenly face significant additional risks to the money and property they pledged to secure a defendant's release. The money and property would be subject to forfeiture under many additional circumstances, and it is unclear what the person would have to do to seek a remission of the forfeiture.
5. Holds that the legislature has given courts broad power to set conditions of release, and it has equipped courts with various methods of enforcing those conditions of release. But, with respect to bail forfeiture, AS 12.30.060 and Criminal Rule 41 speak of imposing this penalty for only one type of violation--a defendant's failure to appear. The court therefore rejects the state's argument that the statute and the rule should be interpreted as implicitly granting courts the authority to forfeit bail in other circumstances.
6. The court also rejects the state's argument that despite the statute’s silence on the issue of non-monetary conditions of release, courts still possess a common law power to seize a defendant's bail when the defendant violates one or more non-monetary conditions. The supreme court recognizes that if courts were allowed to seize a defendant's bail for violation of non- monetary conditions of release, this would work a major change in the law of bail, and it would likely affect the readiness of sureties (both commercial and informal) to pledge their money and property to secure a defendant's release.
7. In short, the court holds that the judge erred when he ordered forfeiture of the defendant’s bail money for reasons other than non-appearance.
B. Dealing with Remission. Holds that a superior court has discretion to award remission.
Fred P. ADKERSON, d/b/a Fred's Bail Bonding v. STATE of Alaska
Supreme Court of Alaska.
Feb. 6, 1987.
1. Fred P. Adkerson d/b/a Fred's Bail Bonding (Adkerson) posted a $50,000 bail bond for Mohammed Nissani, then under indictment for theft and forgery. Nissani fled the state before trial. The bond was ordered forfeited in November 1983. Nissani was eventually arrested by federal authorities and returned to Alaska. After Nissani's return, Adkerson moved to reinstate and exonerate the bond. Superior Court Judge Paul B. Jones denied the motion, concluding that the superior court has no power to remit forfeited bail bonds.
2. The state argued that, because Criminal Rule 41(d)(2) provides that a surety may appeal from a judgment of forfeiture, the surety may not seek remission.
3. The court concludes, however, that this argument does not apply because there is no rule authorizing remission in specific circumstances. Therefore, there is no basis to imply excluding forfeiture in these circumstances. The court also concludes that a superior court has discretion to order remission of a forfeited bond.
4. Although Supreme Court Order No. 157 removed the specific authority in the rules to remit a bond, it does not indicate an intent to disallow the remission. Therefore, remission is not prescribed by the rules and the superior court may act within its discretion in any lawful manner.
5. In exercising its discretion, authorizes courts to consider all relevant factors, including: (a) cost, inconvenience, or prejudice to the government in regaining custody, (b) delay resulting from the nonappearance, (c) willfulness of the failure to appear, (d) public interest in ensuring the appearance.
6. Also, that it is within the court’s discretion to set aside bail forfeitures.
10. Bounty Hunter Provisions
A. Alaska does not appear to currently have any specific bounty hunter or bail/fugitive recovery agent provisions. The only provisions, which would come close to bounty hunter regulation, are the licensing requirements given above.
B. HOUSE BILL NO. 33, introduced on January 19, 1999, by Rep. Dyson, proposed specific regulations for bounty hunters, which have not as yet been adopted.