Thursday, December 12, 2013

Public Safety: we are all responsible

As the end of 2013 approaches and the beginning of 2014 arrives, the debate on how best to enhance and protect public safety will, and should, continue.  What should not continue are the negative attacks focused on what mechanism should be used to release arrested individuals from jail.  Instead, we should work together and do what each system does best to make our communities safer for all of us.

Let’s face it.  In every walk of life and profession, there are bad influences and corruption despite all efforts to prevent it: politicians, law enforcement, clergy, government, criminal justice, banking, education etc.  Do we paint this negative brush from a few on all the rest?  Why focus on the bad deeds of the few without looking at the honorable and good deeds of thousands?

Individuals in the commercial bail industry, for the most part, are honorable men and women who run small businesses, who are passionate about the service they provide in the criminal justice system and are proud to save taxpayers millions of dollars.  Individuals employed by taxpayer-funded pretrial services programs are proud to provide the court with validated and informed risk assessments to make safe, fair and effective pretrial release decisions.  Both systems offer the criminal justice system tools to hold offenders accountable to the court.

Yet, the debate rages on about the, “ravages of what we call bail in America,” by proponents of taxpayer-funded pretrial services programs claiming that financial release disadvantages the poor.  The commercial bail industry stresses that it costs taxpayers nothing while assuming the financial risk for the defendant and in fact, adds money back to county coffers through the payment of premium taxes for every bond written.

Yes, the commercial bail industry provides a service in return for a non-refundable fee.  Just like non-refundable rental deposit fees, real estate fees, insurance fees, educational/tuition fees, airline fees, pet deposit fees, broker fees, ticket/event fees, professional service fees, travel fees, early termination fees and banking fees, as examples, the non-refundable fee to a bail agent is the cost of doing business and assuming the risk of appearance for the defendant.  This non-refundable fee is not a “fine” or something to be charged as punishment.  So why, when so many other industries also charge and collect non-refundable fees, is the bail industry brushed as, “taking profits by making it more expensive for people of lesser means to move through the criminal justice system?

Bail agents don’t set bail amounts.  And while some manipulate the system by charging less than the mandated premium, most veteran bail agents work with legislators and departments of insurance to regulate the industry to prevent such abuses.  Illegal and unethical tactics can destroy and cast a negative eye on an honorable industry.

The purpose of bail is to guarantee the appearance of a defendant at court and no other form of pretrial release is more effective at doing so than the commercial bail industry.  The industry agrees that the threat to public safety and flight risk are important considerations when setting bail.  We also agree that taxpayer-funded pretrial services programs that conduct a validated risk assessment on defendants for the court to determine a release mechanism, is also an important tool.  Any release mechanism should be tied to risk.  Judges have the authority to release any defendant on their own recognizance at any time.  Poor, non-violent and low-risk defendants should not “languish” in jail if they cannot afford financial release because the judge already has the authority to release them.  The commercial bail industry is not the culprit or the one keeping such defendants in jail. 

Proponents of taxpayer-funded pretrial services programs advocate for the elimination of financial release and of the end of the commercial bail industry.  What do they want instead?  Timothy Murray, chair of the Pretrial Justice Institute, said if a defendant is not a threat to public safety or a serious flight risk, they should be released and expected to return for their court date on their own, with the aid of a pretrial monitoring system.  So in essence, this means eliminating a private industry that uses no taxpayer dollars to ensure the appearance of a defendant in court and replacing it or expanding pretrial services programs using taxpayer dollars.  The government then becomes a bail agent releasing and supervising defendants instead of private industry.  The claim is that in the end, such a system will save taxpayers money by freeing up jail beds – but in reality such taxpayer “savings” are just being used elsewhere within government.  And if the defendant misses court more of your tax dollars will be spent to locate and re-arrest them.

The bail industry offers another scenario.

Just imagine the effect on public safety and offender accountability if both systems worked together to ensure the defendant appeared at all required court hearings, refrained from future criminal activity and refrained from violating any other condition of release.   

Defendants who warranted financial bail based on their offense or a judge’s order but ones that a judge determined would benefit from additional layers of supervision, could be released under both systems: 
  • The taxpayer-funded pretrial services program would enforce conditions of release such as drug or alcohol testing, face-to-face or telephone supervision or other conditions of release;
  • The bail agent would be responsible for ensuring appearance at all required court hearings;
  • Any concerns regarding violation of conditions of release or a possible failure to appear could be addressed collaboratively between the two systems;
  • Ongoing and effective communication would occur between both systems supervising a defendant;
  • Defendants would know that both the taxpayer-funded pretrial services program and their bail agent were working together to ensure system accountability and public safety.
A win-win situation with both systems together providing the tools and expertise they have instead of singularly.  No fighting, no blaming, no one-upmanship – just helping to make the criminal justice system stronger. 

The other aspects of the system should work effectively as well:
  • Defendants whose offense(s) warranted financial bail and that could afford their own release either with a cash bond or surety bond with supervision from a bail agent would pay for it and be released;
  • Defendants whose offense(s) warranted financial bail and that could afford their own release but needed additional layers of supervision, could be released on a bail bond and also supervised through a taxpayer-funded pretrial services program;
  • Defendants who were indigent or poor and based on their offense, criminal history and risk assessment were eligible for release and supervision under a taxpayer-funded pretrial services program, could be released; 
  • Defendants who were eligible to be released on their own recognizance or a promise to appear for court based on their offense and criminal history could be released;
  • Defendants who could not afford financial release but whose offense was serious and/or violent and/or had lengthy criminal histories would remain in jail until the court decided the appropriate mechanism for release, if at all.
Both the poor and rich would have fair and consistent release mechanisms. 
We hope that in 2014 across this great country of ours that such magical and possible scenarios can be attained.  The commercial bail industry is ready and willing to be partners in such an endeavor. 

Wishing all a wonderful holiday season and the very best in 2014.