Tuesday, May 17, 2011

Reining-in Pretrial Release Programs at the Federal Level

In the 112th Congress, the current meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives, H.R. 1885 has been filed by Representative Ted Poe of Texas, to include seven co-sponsors.

H.R. 1885 will require state and local pretrial services agencies receiving federal funding to report to the Department of Justice on defendants released through such agencies. This measure will provide greater transparency for programs funded by taxpayer dollars in an effort to gage their effectiveness in the release and supervision of arrested individuals.

Bail agents, their insurance companies and the American Bail Coalition have been pushing for such a bill at the federal level. Private surety bail has been proven by national, state and local studies to be the most effective and efficient means of pretrial release. Private bail uses no taxpayer dollars.

A special report by the Bureau of Justice Statistics that reviewed the release of felony defendants in state courts from 1990-2004 found the following:
Compared to release on recognizance, defendants on financial release were more likely to make all scheduled court appearances. Defendants released on an unsecured bond or as part of an emergency release were most likely to have a bench warrant issued because they failed to appear in court.”
The private surety bail industry will continue to advocate for less use of taxpayer-funded pretrial release programs that historically have higher failure to appear and fugitive rates.

Tuesday, May 10, 2011

Pretrial Release Legislation: The Truth, the Falsehoods, the Games

Attempts to rein in and provide consistency to Florida’s government-funded pretrial release programs through a House and Senate bill never made it to either floor for a vote. The 2011 legislative session went into overtime and unraveled in its final hours.

However, the debate along the way in various committee stops provided much to write about. Senator Ellyn Bogdanoff and Representative Chris Dorworth championed the Senate and House bills respectively and stayed true to their belief that government-funded pretrial release programs have overgrown their original intent.

The bills attempted to limit government-funded release to the indigent and those 300 percent below the federal poverty level to address the “working poor.” It also stated that defendants could not be eligible for release if they had a previous failure to appear, which increases tremendous costs to the overall criminal justice system. According to the Bureau of Justice Statistics, the probability of failing to appear in court was higher among defendants who had a prior failure to appear. The bills stipulated that a defendant who is not otherwise eligible for government-funded release would be eligible if not released within 48 hours, thus allowing even more defendants into the government-funded pretrial release program. Finally, they exempted counties with populations under 350,000 residents.

But even those counties below this threshold came out in aggressive opposition to the bills even though their programs would not be affected.

Senator Bogdanoff was adamant that the taxpayers should not subsidize the release of defendants who can afford their own release. She said in her comments to the Senate Committee on Judiciary that:
"The reason I am putting this bill forward is that I do not believe it is appropriate for government to be picking up the tab for people who can afford bond. There is absolutely no information that indicates that it’s going to cost the county government money. Government likes to expand government, that’s just the way it is, the nature of the beast. And I would say it’s our obligation to make sure that government doesn’t step into the roles where they don’t belong. If we have bonding agents where people can afford to bond, and bond out, the taxpayers should not be picking up that tab.”
Representative Dorworth was even more outspoken in his comments to the House Criminal Justice and Judiciary Committees. He started by pointing out that opponents of the bills will argue that jail populations will increase if the bills are passed, however OPPAGA, the Legislature’s oversight arm for pretrial release programs, found that there is no correlation between a county’s jail occupancy rate and whether or not they have a pretrial release program.

The Florida Association of Counties (FAC) stated that 72 percent of defendants in Florida’s jails are already determined to be indigent, which means that only 28 percent of defendants can afford their own release. Yet FAC and others were against exempting those who can afford their own release from eligibility into the government-funded program.  

Sarah Carroll, Legislative Advocate for FAC, kept throwing out “conservative estimates” stating that:
If all of the people who were not indigent were excluded under this bill, there would be about a $52 million impact to counties. If you assume that 20 percent of the people who are not eligible based on indigency criteria alone, it’s still going to be a $10 million impact to the 17 counties reporting. If you go to one-third of the people who would be ineligible, it’s going to be about a $17 million impact.”
Of course there was no evidence provided to support these figures.

Representative Dorworth said in reference to Ms. Carroll’s remarks and numbers:
So the poor, the people who rightly benefit from the assistance of government are rightly going to receive it. But we’re saying do we want to use taxpayer dollars to take people and get them out of jail when they can rightly post a bond. We’re talking about people accused of a crime here. I just find the whole conversation to be very interesting.”
There was much discussion regarding the “profit-making entity” driving the legislation. Opponents of the bill kept hyping that the bills would shift money directly away from defendants and taxpayers to bail bondsmen by forcing defendants who would otherwise be eligible for pretrial release to post bail. This would increase jail populations and cause millions of more taxpayer dollars to be spent on building jail beds.

Yet the bills would clearly take care of the indigent and working poor while allowing those who could afford to pay for their own release to do so. The proposed bottlenecking was never explained.

Representative Elaine Schwartz asked a representative from the Association of Pretrial Professionals of Florida how counties are able to do this [run pretrial programs] without any state money or any costs to the taxpayers and how staff salaries are paid for those who run the programs?

The Association of Pretrial Professionals of Florida representative had to publicly admit that government-funded pretrial release programs are mostly run by the counties and operated by county employees. And, funded by the taxpayers.

Opponents of the bills even went so far as to say the commercial bail bond industry is making the decision about who should not be released or who should be released. Really? We thought that was the judge’s job to decide. However, they quickly pointed out that their programs don’t decide such:
Florida’s pretrial programs do not choose who they are going to supervise.  Defendants released to Florida’s pretrial release programs are released to the program at the discretion of the court for a valid reason.”
Well folks, it works the same way for bond.

Then opponents tried to claim that more defendants failed to appear on surety bond than under their pretrial release supervision. They conveniently threw out statistics of such success with no statistical outcomes to prove them. On the other hand, the Bureau of Justice Statistics with the Department of Justice has stated that compared to release on recognizance, defendants on financial release were more likely to make all scheduled court appearances. Defendants released on an unsecured bond or as part of an emergency release were most likely to have a bench warrant issued because they failed to appear in court.

Again, Representative Dorworth summed it up nicely:
I think first and foremost, there is no motive like a profit motive and when a member in the bail bond industry posts a bond for somebody, they have an obligation to make sure that person shows up in court or they lose money. And so they have that responsibility if someone does not show up for their court date, they’re obligated to go and bring them in. Under pretrial release if they don’t show up for a court date, we just give the information to the cops and that becomes the responsibility of the government. I would suggest to you that with a bail bondsman if they post the bond, they are responsible for making sure that person shows up for every court date and for a lot of the data that you see on pretrial release, if you show up for ten court dates and you miss the 11th one, they rule you as being 91 percent in attendance. As a bail bondsman, you are 100 percent out of compliance if you miss one court date.”
Then much of the discussion shifted to the needs of the defendants who are arrested for a criminal offense and taken to jail.

One of the sheriffs in vocal opposition to the bills stated multiple times that pretrial programs provide an opportunity for those charged with a non-violent offense and pose no threat to public safety, an opportunity to be released timely:
They can return to their jobs and provide for their families and avoid loss of job, avoid loss of having their vehicle repossessed because they couldn’t make payments because they were in jail and they lost their job. Avoid losing their homes because they didn’t have an opportunity to pay because they were sitting in jail. We all know what happens when someone sits in jail for two, three, four, five six days and you’re working, you lose your job. This provides an opportunity so they can go back to work and keep their job and provide for their family . . . keep their apartment, keep their home, keep their car.”
He went on to say to the Legislature:
But I will tell you and I will plead with you that pretrial release is not a service or function that should be outsourced to the bail bond industry. They have their own business, their own industry; don’t be interfering with our pretrial release programs. Stand up people, do what’s right.”
Well, I don’t know what your definition of a non-violent or a low-risk offender is, or what the victim(s) of a defendant’s crime would think, but I believe that a defendant charged with battery, battery domestic violence, domestic violence by strangulation, aggravated battery on a pregnant person, aggravated battery with great bodily harm, aggravated assault with a firearm or deadly weapon, battery on a firefighter or law enforcement officer, or burglary of an occupied dwelling, has not committed a non-violent offense but a violent offense and they shouldn’t be released from jail on my tax dollars with no financial skin in the game.

But you also have many more defendants released on your tax dollars for grand theft, prostitution, carrying concealed weapons/firearm, possession of a firearm in commission of a felony, possession, distribution, trafficking of controlled substances; cocaine; heroin; oxycodone; methadone; oxycontin; cannabis, DUI (with minor in vehicle, property damage or personal injury), driving with no valid driver’s license, driving with license habitually revoked, trafficking/dealing in stolen property, burglary of unoccupied dwelling, forgery, theft, lewdness and indecent exposure . . . and many more crimes.

All of these offenses can be documented for release.

Representative Dorworth summed up the sentiments of many citizens when he stated:
"I think sometimes we are forgetting that we are talking about people that have been arrested and accused of a crime, and I have found that many people in this Legislature have found it completely offensive to ask those people to do anything, at any inconvenience whatsoever."
But there’s more.

Echoing this sentiment of bowing to the needs of defendants charged with a crime rather than considering how the victims of the crime would feel, several government-funded pretrial release advocates said the following:

A representative of county government said:
There is no reason to put people in jail who don’t belong there, there is no reason to keep people in jail who do not belong there. At home we call this bill the ‘bail bondsmen relief act,’ because that is what it seems to be and I would think the policy of this state is not what the bill says, which is support the private sector bond industry. But to ensure that those people who don’t deserve to sit in jail are not sitting in jail and the taxpayer’s don’t have to pay for that.”
Then scare tactics when a director of a government-funded pretrial release program told the Legislature:
You’re going to hear the devastating impact this bill will have on our Florida counties. If this bill passes, what will happen to victims of domestic violence? Who will be there for them, who will give them peace of mind in knowing there is someone out there to hold these defendants accountable and make sure they do not harass, stalk or batter the victims again? What about the people who need substance abuse treatment but won’t get the help without being forced to? Who will be there for their families? What about the defendants who so desperately need mental health treatment who will give them the resources they need so that they cannot get arrested again? And who is going to be there for the victims of sex crimes? Who is going to make sure these people are not hanging around our schools, daycares, parks and our kids? Who is going to be there for our children? We have an obligation to protect the citizens of the state of Florida and this is something pretrial agencies take very seriously. If this bill passes in any form, you will be jeopardizing the safety of everyone in this room and everyone in the state of Florida.”
Wow! How can government-funded pretrial release programs claim they are protecting the public against all of these offenses by seeing someone for 15 minutes weekly or monthly, if ordered, or by having someone call into an automated telephone system to check-in? More in-depth supervision methods perhaps, such as home confinement or GPS monitoring; this is not the standard supervision given to most defendants released to pretrial release programs. And the private sector, including bail agents, provides GPS monitoring, drug/alcohol testing, mental health treatment referrals, etc. These services don’t have to be overseen by government. Law enforcement ensures sex offenders are not, “hanging around our schools, daycares, parks and our kids,” not government-funded pretrial release programs.

Another of my favorite lines told to the Florida Legislature was this:
To ignore those pleas [of government-funded pretrial release programs] is to lead us to enrich the bail bondsmen on the backs of taxpayers of Florida.”
After all the rhetoric and condemnation toward the private surety bail industry, Representative Dorworth provided this explanation:
The proponents of this bill are a for-profit industry. Apparently to some people here, the phrase ‘for-profit’ has become an insult, and I do not believe that. I think for-profit is what drove America to be great. And I think the fact that people in private sector are able to do a job, should receive some benevolence from the Florida Legislature. The people who work as bail bondsmen are small business people. These are not international conglomerates. These are people who work hard to put bread on the table and take care of their families like you and me. Pretrial release opponents all stand up because they are protecting the bottom line, the revenue that comes out of the programs they want here. And they stand up . . . I actually heard this was just said here . . . they said a profit-making industry is terrible; there’s an industry that wants to make a profit.”
And other Legislators took opponents of government-funded pretrial release programs to task after their lobbying efforts.

Representative Matt Gaetz said he was compelled to debate after hearing several presentations by Okaloosa County who wouldn’t even be affected by the bills. He said the following:
My reaction to the content of that testimony is one of pure embarrassment, because the content of what we’ve adopted completely exempts Okaloosa County as a county under 350,000. There’s not a county within 50 miles of Okaloosa County that will be affected by Representative Dorworth’s bill. And I certainly hope that the taxpayers that I represent didn’t send anyone here and aren’t paying for anyone’s reimbursement to be here to give this testimony that was totally not germane to the matter before us. If there were lobbyists that told folks to be here they ought to be fired. This is an example of trying to snatch victory, or snatch defeat from the claws of victory. It’s utter, utter incompetence. To the content of the bill, I have been educated that pretrial release programs in certain areas can become a cesspool for patronage; they can become a place where there can be cozy relationships between counties, law enforcement and vendors that make a lot of money on these pretrial release programs. To me you define the conservative philosophy; I know everyone defines their philosophy differently, but to me I define my conservative philosophy that if you can pick up a phone book and find three people that are willing to do the job in the private sector, you’ve got to wonder why government is in that space. It’s always good for people to have skin in the game for people that do work for the state of Florida; that’s been our approach to Medicaid reform, it’s been our approach to education reform, and here, if you have a private sector company that has a profit motive to get people in court, that seems to be pretty good public policy.”
Representative Eric Eisnaugle stated he wasn’t planning on saying anything on the bill, but said there was something bothering him enough that he wanted to do so. He said the following:
Initially the argument when people would come talk to me about this bill was that look, simply being indigent is not enough, people are not going to be able to bond out still even with that and as a result, the jail populations would sky high was the argument. Well now, Representative you’ve expanded that, you’ve said 300 percent of the federal poverty level, but yet the same arguments are still being made. My genuine concern is to me there’s a problem with credibility. We’re starting to get into the point where there is a problem with credibility. And I’m starting to wonder if people just want a government program for everybody regardless of whether or not they are rich enough to pay for bond. I for one don’t think there should be a government program for those who are able to bond out, and as a result of the process I just laid out, I’m going to be voting for the bill today.”
Perhaps government-funded pretrial release programs should listen to the comments made by Representative Ray Pilon. He said:
I too come from an area, in fact when I was a County Commissioner helped establish our pretrial release intervention; I do want to have more consistency throughout the state as the Representative has talked about and I do want it to work properly. I think we are moving in the right direction as one of the members just talked about. And then I start doing a little inquiry into facts and figures. And what I find out is that we have a lot of pretrial programs going around the state, certainly not in all 67 counties, certainly less than half, about a third now . . . and the problem I have with the program is that since I first envisioned it in my county, it has morphed into something more than I envisioned it, and it lacks consistency throughout the circuits. It is my desire, whether or not this goes up or down here or on the floor, to one if we do away with them, one I come back next year and create a program legislatively that has consistent pretrial . . . and I like to use the word intervention, because of drug courts and mental health courts. But I just got figures from my own county and only 44 percent of the folks in our local pretrial were indigent; the rest were not. I’m a huge supporter of what I thought were pretrial systems but I think we need more consistency.”
As aptly stated by Representative Dorworth:
A fact of life is that government can always out-do private business. If tomorrow your county decided to start a bank and they wanted to use tax dollars to support it, they could very easily offer higher interest rates and probably give cheaper loans. And they can always do that because they have the benefit of government money. So then what happens, is everyone starts putting their money and doing their loans and we’re doing all these transactions, and suddenly we’re making money on it. And then we say, ‘Wow this is great; we’re so much better.’ And the banks come to you and say, ‘This is not good; this is causing us to lose our business.’ And you say, ‘Well, it’s important for us because it’s a big part of our revenue.’”
The private surety bail industry applauds Senator Ellyn Bogdanoff and Representative Chris Dorworth for their continued support amidst the mistruths and twisted facts presented.

The taxpayers too deserve to have their tax dollars used more wisely.