Friday, April 9, 2010

Florida's Pretrial Release Legislation: Limiting a "Criminal Welfare System"

With the current economic climate, much discussion has taken place around the country on how best to spend limited taxpayer funds and on what services and programs. State and county governments are faced with drastically cutting budgets while trying to maintain core services that benefit the citizens and communities.

One core service that all agree should not be sacrificed is public safety. How you effectively and efficiently ensure that public safety is held harmlless when dealing with increased budget woes can be a difficult tightrope. Jails are one of the largest expenses county governments must budget for. Overcrowded jails lead to increased incarceration costs for the taxpayers yet releasing potentially dangerous individuals from jail can create public safety issues in the community.

Across the country a growing debate has ensued regarding the manner and method of release from jail. Private surety bail, whereby a defendant posts a non-refundable minimal percentage fee of the total bond with a bail agent (for example in Florida the percentage is 10 percent), is what most people probably believe happens in the majority of the time. However, defendants also often post a full cash bond with the court for their release and can recoup some of those funds if they appear for all court hearings, less court fees and/or fines. There are also notices to appear, where a law enforcement officer will issue a notice to appear to the defendant whereever the alleged offense occurred instead of taking the individual to jail. Another release mechanism is release on recognizance, where a Judge or jail personnel release the individual on their promise to return for all court hearings. The last form of release is one that has garnered much of the debate - taxpayer-funded pretrial release.

When Florida's jails were severely and dangerously crowded in the 70's and 80's, taxpayer-funded pretrial services programs were established specifically to assist in the release of un-sentenced indigent defendants charged with minor offenses and who were unable to post a monetarty bond. Such programs helped lower jail populations while ensuring that defendants ordered for release did not languish in jail. Despite the fact that these progrtams claim to still adhere to this mission, their own release statistics show otherwise.

Pretrial services programs have a place in the criminal justice system as does the private surety bail industry. The core function of pretrial services programs is to conduct a thorough investigation into every defendant booked into jail to include their criminal history, social/community ties, financial status, failures to appear, violations of probation, etc., so that the first appearance Judge can make an informed release decision. Indigent defendants charged with non-violent offenses and granted release by the court, are the type of individuals such programs were designed to focus on - not those defendants who can afford to pay for their own release and who are charged with more serious offenses.

Advocates of taxpayer-funded pretrial services programs want to know, "Who will monitor conditions and report compliance or non-compliance to the courts? Who has the professionally trained staff with expertise to collaborate with treatment providers and key system stakeholders in the criminal justice community? Who does the court expect to supervise and monitor special conditions of release even if they place bond on a detainee? And finally, who should the court system trust with accurate, objective, confidential information?" if defendants are not released under their control.

The answer to these questions already exists. The professionally licensed and highly regulated bail agent.

While ensuring the appearance of a defendant in court is the core responsibility of the bail agent, it is by no means their only duty. Many bail agents provide GPS monitoring and drug/alcohol testing and if not, often provide community referrals to defendants for these very services. A bail agent who bonds a defendant out of jail and who has added conditions of release will work with community stakeholders to ensure the defendant is meeting those conditions. Private surety bail has been used for centuries and has earned the trust and respect from the courts and criminal justice partners. Bail agents take confidentiality very seriously. A bail agent collects detailed information on a defendant and their family, assesses risk and is completely financially and physically responsible for a defendant released on bail. Private surety bail generates revenue for the state instead of taking revenue . . . and, bail agents pay their fair share of taxes to the state as well.

Let's take a look at the type of criminal offenses occurring and the subsequent releases through a taxpayer-funded pretrial services program in one Florida county:

For example, in Orange County, Florida, one of 67 Florida counties, 2,662 individuals were arrested within the last 30 days alone. Some offenses would be considered, "minor" in nature, while others were clearly serious and/or violent ones. While all of these arrested individuals have only allegedly committed the offense they are arrested for, the arrest cannot be ignored. Under our Constitution everyone is presumed innocent until proven guilty; however reality is that many of the people arrested every day have prior criminal and/or driving arrest histories, failures to appear and violations of probation. Many have served time in state and/or federal prisons. A thorough risk assessment and investigation into each arrested person's backgroud should be conducted to determine the best method of release from jail that will ensure the person's appearance in court and protect public safety.

According to statistics from the Orange County, Florida jail, their population capacity sits at approximately 85 percent, as it has been for many months. As of today, the jail was holding 1,714 un-sentenced defendants charged with felony offenses and 294 un-sentenced defendants charged with misdemeanor offenses. Of course, felony offenses are more serious in nature and carry heavier sentences if convicted. Proponents of taxpayer-funded pretrial services programs want citizens to believe that the jails are not filled with, "really bad people," and that most of the alleged crimes committed are minor in nature. They claim most defendants are indigent and can't afford a monetary bond for release, so in order to not crowd their jails, they feel it appropriate to use your tax dollars to release and, "supervise" these defendants in the community until their case is disposed of. It makes no difference that many of these defendants are not new to the criminal jsutice system or that they were able to pay for their release in the past. If a defendant says they have no money, they must be telling the truth and thus, become, "indigent."

Take a look at the types if alleged crimes people were arrested for in Orange County over the last 30 days:
  • Battery domestic violence (includes by strangulation; when pregnant; tampering with witness to hinder communication to law enforcement; defendants with prior domestic violence charges; violation of injunctions; violation of pretrial release conditions)
  • Aggravated assault/battery domestic battery (includes with/without weapon; with great bodily harm)
  • Battery/aggravated battery
  • Assault/aggravated assault (includes on law enforcement officer)
  • Battery/dating violence (includes by strangulation; aggravated assault)
  • Aggravated assault/battery with firearm and/or deadly weapon
  • Aggravated stalking
  • Sexual battery
  • Felony battery
  • Lewd/lascivious battery/molestation
  • False imprisonment
  • Resisting law enforcement with violence
  • Child abuse/neglect
  • DUI (includes prior convictions; .15 or greater; property damage and/or personal injury)
  • Possession of cannabis/drug paraphernalia (includes with intent to sell/deliver; over/under 20 grams)
  • Possession of cocaine (includes with intent to sell/deliver; trafficking)
  • Grand theft 3rd degree (includes up to $20,000; with firearm; with motor vehicle)
  • Petit theft (includes retail; prior offenses)
  • Trespass (includes after warning; refusal to leave; occupied and unoccupied)
  • Burglary (includes possession of burglary tools; occupied and unoccupied; with assault/battery)
  • Possession of concealed firearm/weapon (includes by convicted felon; in commission of a felony)
  • Robbery (includes with a firearm/deadly weapon; subsequent force; sudden snatching)
  • Possession of ammunition by convicted felon
  • Shooting firearm from vehicle
  • Prostitution/solicitation
  • Scheme to defraud
  • Driving with license suspended/revoked (includes revoked as habitual offender)
  • Driving with no valid driver's license
  • Fleeing/alluding law enforcement with lights and sirens
  • Violation of probation
  • Failure to appear

Do these offenses seem minor and non-violent in nature?

Defendants charged with the following offenses are being released into Orange County's taxpayer-funded pretrial services program, with the majority of defendants calling in to an automated telephone answering service for, "supervision." Rarely is there face-to-face contact between a defendant and a pretrial services officer, no field visits are conducted to a defendant's place of work or residence and no interaction occurs with a defendant's family or friends. Somestimes a Judge may order GPS monitoring and drug/alcohol monitoring. GPS monitoring is done by a private community provider who reports violations to the pretrial services program, who in turn informs the court. The jail has the ability to do minimal alcohol/drug testing but must rely on community providers for more in-depth testing. These costs are passed on to the defendant and many programs charge an, "administrative service fee" for release. Orange County charges the defendant $19 every three months for telephone, "supervision."

So aside from mainly reporting violations to the court, which a bail agent is also obligated to do, what does Orange County's taxpayer-funded pretrial services program really do? What the private surety bail industry has said all along should be their core function: conducting a thorough investigation on each defendant so the first appearance Judge can make an informed release decision. All of the millions of extra dollars spent to, "release and supervise" defendants is unnecessary!

Yet in Orange County, defendants continue to be released into the pretrial services program for the following offenses, despite their ability or non-ability to pay for their own release:

  • Battery domestic violence
  • Battery on person 65 years or older
  • Aggravated battery (includes on pregnant person)
  • Intentional threat to do violence
  • Tampering with a witness
  • Driving with no valid driver's license
  • Driving with license expired > 4 momths
  • Driving with license suspended/revoked (includes with/without knowledge; revoked as habitual offender)
  • Possession of cannabis <>
  • Possession of drug paraphernalia
  • Possession of Methadone
  • Possession of Oxycodone
  • Possession of Alprazolam
  • Possession of controlled substance (includes sell/manufacture)
  • Possession of cocaine (includes trafficking)
  • Obtain drug by fraud
  • Introduce contraband into county facility
  • Petit theft/larceny
  • Failure to leave property when ordered
  • Obstruction by disguished person/false information
  • Destruction of evidence
  • False information to law enforcement
  • Defrauding an innkeeper >$300
  • Criminal mischief
  • Loitering/prowling
  • DUI (includes with minor in car; .20 >)
  • Prostitution
  • Lewdness
  • Grand theft 3rd degree
  • Trespass after warning

The private surety bail industry has always acknowledged the role and purpose of pretrial services programs and continues to do so even with the passage of the proposed Florida pretrial release bills. Our goal is to educate the citizens and inform them on inappropriate ways their tax dollars are being used that particularly affects public safety.

A recent Mason-Dixon poll of Florida voters showed that:

  • 87 percent felt if a criminal defendant can afford to pay their own bail for release they should not be allowed to be released from jail using tax dollars;
  • 94 percent felt criminal defendants who have previously failed to appear for court should not be allowed to be released from jail using tax dollars; and
  • 86 percent felt a criminal defendant previously convicted of a violent crime should not be allowed to be released from jail using tax dollars.

These results are very similar to what Orange County taxpayers said in response to a mailer Accredited sent to registered voters regarding release through the Orange County jail's taxpayer-funded pretrial services program. The message is clear: taxpayers don't want to fund a, "criminal welfare system" that fosters no accountability to the defendant for their actions.

To the detriment of collaboration and the efficient use of taxpayer dollars, advocates of pretrial services programs in Florida and across the country where such programs are being challenged, are spreading falsehoods, propaganda and misinformation regarding the true benefits and mission of the private surety bail industry. Pretrial services programs and two national associations that represent them, the National Association of Pretrial Services Agencies (NAPSA) and the Pretrial Justice Institute (PJI) aggressively support the abolition of private surety bail, the only remaining privatized element of the criminal justice system which costs taxpayers nothing.

Both national organizations support standards that call for, "The abolition of compensated sureties" (NAPSA: foreward; introduction; key principles; standard 1.4). These organizations feel that every defendant, regardless of their ability to pay for their own release, the offense they have been charged with or their criminal history, should be released without any financial conditions or accountability. And, the very taxpayer-funded pretrial services programs across the country that use your tax dollars to release and supervise defendants from jail, also use your tax dollars to pay dues to these organizations that clearly want to eliminate a private industry with a proven track record for effectivenesss and accountability.

Advocates of pretrial services programs are telling your elected officials that if HB 445 and SB 782 pass, their jails will be overcrowded, causing taxpayers to spend millions of dollars to house and/or build new jails. Such programs want you and your elected officials to believe that if someone can't be released under a pretrial services program, they will automatically languish in jail. The fact is, most people who are able to post a monetary bond for release do so within 24-48 hours. If they can't, either their bail is set high, their charge is one that prevents their release, they are truly indigent or perhaps their family/friends no longer trust them to abide by the law.

The private surety bail industry is proud of the role we play in the criminal justice system and the service we provide. If you agree that government should not encroach on private enterprise that already does a valuable service at no taxpayer expense, let your legislators know!

Support HB 445 and SB 782!


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