Tuesday, September 3, 2013

How Commercial Bail Protects Public Safety

When someone is arrested, the court determines if that person warrants release from custody based the arrested offense, their past criminal history and other mitigating factors and then sets conditions for release.  If bail is given, it cannot be excessive per the Eighth Amendment to the United States Constitution.

As defined in the Florida Statutes and most other states, “bail” or “bond” includes any and all forms of pretrial release.  The Florida Rules of Criminal Procedure defines “bail” as any of the following forms of release: 

  • Personal recognizance of the defendant; 
  • Execution of an unsecured appearance bond in an amount specified by the judge;
  • Placing restrictions on the travel, association, or place of abode of the defendant during the period of release;
  • Placing the defendant in custody of a designated person or organization agreeing to supervise him;
  • Requiring the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that any criminal defendant who is required to meet monetary bail or bail with any monetary component may satisfy said bail by providing an appearance bond; and
  • Imposing any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.
Of all of these forms of release, a commercial surety bail bond has been proven to be the most effective and efficient means of ensuring a defendant appears at all court proceedings and has the lowest recidivism rate for defendants on pretrial release.  Bail agents assess risk on every defendant and often take collateral and utilize third-party indemnitors to further ensure appearance.

A bail bond is an insurance product: a contract between the court, defendant and surety.  The system is user-funded and uses no taxpayer dollars.  The non-refundable fee the defendant and/or indemnitor pay to the bail agent is the cost of assuming the risk of appearance for that defendant.  Bail agents and the surety company are held to strict standards and licensing requirements:

  • Meticulous records must be kept years after a bail transaction 
  • Surety companies must file quarterly financial statements to demonstrate their solvency
  • Bail agents and surety companies must be licensed by each state’s Department of Insurance
  • Surety companies must undergo market conduct exams to ensure they are meeting all licensing requirements
  • Continuing education is required to maintain a bail license
Bail agents work with defendants from all socio-economic backgrounds.  Bond fees and rates are not determined by race, gender or socio-economic status but by strict bail schedules or other schedules determined by the court. 

What the public doesn’t always understand is the level of supervision provided by bail agents and the actions they can take to ensure defendants are adhering to conditions of release.
  • Bail agents take detailed information on a defendant to determine their risk level and what safeguards and conditions need to be added to the bail contract 
  • Bail agents catalog information on a defendant in order to find the defendant at all times:
    • Family/relatives (addresses and phone numbers)
    • Friends/girlfriends/boyfriends (addresses and phone numbers)
    • Employers/school
    • Residency (address and phone numbers)
    • Social habits/hobbies etc.
    • Driver’s license and social security numbers
  • Bail agents have broad supervision rights over defendants released on bail
  • Bail agents can surrender or arrest defendants if the contractual conditions of release have been breached
  • Bail agents can make warrantless searches and seizures
  • Bail agents utilize third-party indemnitors on each bond as an added incentive for the defendant to appear at all court hearings and refrain from criminal activity
  • Bail agents often require defendants to have regular check-ins in person and by phone
  • Bail agents have ongoing communication with indemnitors who provide a critical source of knowledge regarding a defendant while out on pretrial release
  • Bail agents make field visits to a defendant’s home/work when necessary
  • Many bail agents offer GPS monitoring and drug testing as a condition of bail, which enhances public safety
  • Bail agents are financially liable for defendants released on bail
  • Bail agents have a financial incentive to make sure defendants appear for court and often risk their lives to apprehend defendants who have failed to appear
  • Bail agents have arrest powers and will find defendants who have failed to appear or who have breached the bail contract and put them back in jail
  • Bail agents coordinate with law enforcement for the recapture of a defendant in risky or dangerous situations to protect both the defendant and the public.
In the U.S. Supreme Court case Taylor v. Taintor, the court ruled that a bail agent has a legal right to supervise a defendant at all times:
“When bail is given, the principal is regarded as delivered to the custody of his sureties.  Their dominion is a continuance of the original imprisonment.  Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done.  They may exercise their rights in person or by agent.  They may pursue him into another State; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose.  The seizure is not made by virtue of new process.  None is needed.  It is likened to the re-arrest by the sheriff of an escaping prisoner.”
So the next time you are told that bail agents only care about profit and making sure their defendants appear for court and nothing in-between, help educate them on what the bail industry really provides and how we save taxpayers millions of dollars each year.