The debate continues as to whether taxpayer funding should be used to release and supervise defendants in the criminal justice system or if private industry can do the same more efficiently. The crux of the issue? Money should not be required to be released from jail. The argument? Money bail discriminates against the poor and promotes the release of the rich. Money bail keeps defendants in jail thus increasing the cost to taxpayers. Provide defendants with taxpayer-funded release based on a risk assessment score with oversight by government employees, and all will be fine. Make defendants pay for their release, which will only profit the bail bondsman, with no effect on public safety. Money bail only buys someone’s release from jail and profits private industry.
Despite numerous academic studies and proof that commercial bail is the most efficient and effective means of pretrial release due to the layers of supervision and financial accountability, the push to use non-financial release in the criminal justice system continues.
The fact that defendants released on unsecured means (taxpayer funds) have higher recidivism and failure to appear rates should be ignored. Or that the taxpayer is financially responsible for those failures to appear. In essence, the taxpayer is paying law enforcement to arrest defendants, paying to house the defendant, paying jail staff to interview and assess defendants, paying to process the release of defendants and paying to supervise defendants. At no point does the defendant assume any financial responsibility for their actions under unsecured release methods.
What about a collaborative system where government and private industry work together? Very rarely happens – and it is not due to the bail industry.
Accredited Surety and Casualty Company, Inc. is domiciled in Florida and located in Orange County, Florida, thus much of the review and analysis of taxpayer-funded pretrial services programs is focused in Florida and specifically in Orange County.
In Florida, the Legislature passed the Citizens’ Right-to-Know Act that delineates requirements for non-secured release into any pretrial services program, public or private, which conducts investigations of pretrial detainees, makes pretrial release recommendations to a court and electronically monitors and supervises pretrial defendants.
Non-secured release means the release of a defendant from pretrial custody when no secured surety or cash bond is required as a condition of the release. The act also requires pretrial services programs to provide an annual report for the previous calendar year to the governing body and to the clerk of the circuit court in the county where the pretrial release program is located. The annual report must be readily accessible to the public.
For example, the annual report provided by the Orange County, Florida jail’s pretrial services program attempts to justify the program based on the following legal authority:
Article 1, section 14 of the Florida Constitution provides that: “unless charged with a capital offense or an offense punishable by life imprisonment, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.”
Section 907.041(3), Florida Statutes, states that: “it is the intent of the Legislature to create a presumption in favor of release on non-monetary conditions.”
None of the two sections above provide any legal authority for the creation of a taxpayer-funded release and supervision program. It simply provides that defendants are entitled to release on reasonable conditions and that the Florida Legislature favors release on non-monetary conditions. Both of which can be ordered by a judge without the need for millions of taxpayer dollars to be allocated to create and fund a program to do the same.
Only 28 of 67 counties in Florida have determined that taxpayer funds should be used to establish a pretrial services program. The rest of the counties manage their jail populations through public and private release mechanisms. The Office of Program Policy Analysis & Government Accountability (OPPAGA) in Florida is charged with the annual review and adherence to statute for Florida’s pretrial services programs. The last report available from OPPAGA (report 13-12, December 13) for the 2012 calendar year noted the following:
- Only 11 out of 28 programs were able to provide a detailed breakdown of the nature of a defendant’s criminal history to the court;
- Only 15 out of 28 programs charge fees to defendants to support program services;
- Programs had varying numbers for failures to appear and arrests for new offenses, thus no consistency among programs;
- Several programs did not provide criminal history data as required in the weekly registers; and
- Only 11 out of 28 programs reported that in all cases it had certified to the court that it had obtained and verified required elements for non-monetary releases at first appearance hearings as required by statute.
The Orange County jail houses a taxpayer-funded pretrial services program. The program operates 24/7 and is comprised of two key functions:
- Inmate identification, court information and release processing – funded at $1,466,024 for the 2013 fiscal year; and
- Post-release supervision of non-secured releases (taxpayer-funded release) to include supervision of defendants on electronic monitoring – funded at $1,160,936 for the 2013 fiscal year
- Improper compliance audits and compliance with program conditions;
- Home confinement staff failed to address night time and weekend alerts in a timely manner or sometimes not at all;
- Failed to conduct administrative hearings when excessive violations occurred; and
- Staff were instructed to reduce revocations on supervised defendants to “keep their numbers up” in order to sustain the program.
- The supervision program operates Monday-Friday only and provides minimal supervision through telephone reporting and office contacts;
- The supervision program was funded at $1,160,936 with the budget consistently increasing each fiscal year;
- The inmate identification, court information and release processing was funded at $1,466,024; it should be noted that this funding also allows jail staff to release defendants on their own recognizance without ever seeing a judge – over 340 defendants in 2013;
- Only slightly over half of the defendants were required to post a cash or surety bond in addition to taxpayer-funded supervision;
- 18.5 percent of defendants on taxpayer-funded supervision did not successfully complete the program;
- While the supervision budget increased over the 2012 fiscal year, less money was collected in program fees from defendants (this could have been in part due to the termination of the home confinement program);
- The taxpayer cost of supervision per person was $343; and
- The return on investment for fees collected vs. supervision funds expended was 1.29 percent.
The bail industry has stressed the importance of private and government entities working more collaboratively together to monitor pretrial defendants when released on taxpayer funds and a bail bond. This has specifically been discussed with the leadership at the Orange County jail by bail industry representatives. When defendants are released on a bail bond and the court places them on taxpayer-funded supervision to monitor other conditions of release, both entities should work together for a successful conclusion to the case. Both entities have a vested interest in making sure the defendant is adhering to conditions of release and the community is safe. Particularly the bail agent as they are financially responsible for that defendant.
To date, little collaboration is occurring in Orange County with the bail industry and criminal justice partners. But the industry will remain willing participants if and when the overture is made.
Are there flaws on both sides of the fence? Of course. There are good and bad players and experiences in every industry unfortunately. The commercial bail industry will continue to work with stakeholders to ensure laws and regulations governing the industry are adhered to.
The bail industry and taxpayer-funded release systems should work together to create more accountability on the part of offenders and increased public safety for victims and the community as a whole. Such collaboration will only strengthen the criminal justice system in the end, which is what we should all strive for.