Tuesday, March 11, 2014

Is Money Really Weighing Down the Scales of Justice in the Criminal Justice System?

We have all heard the arguments, the scare tactics, the innuendos, the blatant falsehoods and skewed statistics: how money bail is the only thing keeping those arrested for a crime, for the most part, from being released so they can return to their families and communities to be productive citizens pending the disposition of their case.

How poor defendants charged with low-level crimes can spend days, months or even a year sitting in jail waiting for a trial that often ends in an acquittal, while defendants with access to money and who are charged with a major crime can be set free “immediately to kill again,” as a recent New Jersey editorial stated. 

Other notable quotes regarding the bail industry include:
"Community safety is not anywhere in the realm of pretrial release and when you look at who can get out it’s the drug dealer who has his pals in the back with a wad of money and the indigent is going to be staying in no matter the outcome."
"One night or day in jail can really impact an individual; when arrested we are impacting their family, their work, their whole life. Many people going through the system don’t have smart phones for reminders, so other little things to get them to court are important instead of paying money they don’t have. If they pay a bond, now they can’t pay their rent or buy food." 
"You pay a bail bondsman ten percent and then you get arrested again and the bail goes up even more and you pay the bail agent more money for the next time you get bailed out. It is very illogical and begs the question why are we doing this; people just think that is how it’s done." 
"The ravages of what we call bail in America; a ridiculous game that disadvantages those who are the least equipped and resourced to defend themselves." 
"For better or for profit: how the bail bonding industry stands in the way of fair and effective pretrial release." 
"Bail fail: why the U.S. should end the practice of using money for bail."
For added benefit, the threat of jail overcrowding and how much taxpayers will have to pay for extra jail beds adds fuel to the flame.   Poor and low-income defendants remain in jail for months costing taxpayers thousands of dollars per inmate because they can’t even raise small bail amounts.  Thus encouraging the expansion or creation of taxpayer-funded pretrial services programs – also funded with taxpayer dollars – to facilitate the release of defendants on the taxpayer’s dime with government staff doing the supervision. 

What is not really talked about is the real cost of housing an inmate.  In reality, the real cost of housing an inmate per day is typically under $20 for the cost of consumables – clothing, toiletries and food.  Not the fixed costs that remain to run a jail unless major sections of the jail are closed.

Let’s be clear about a few things.
  • Jurisdictions have relied on commercial bail since the founding of the United States. 
  • The commercial bail industry saves taxpayer’s millions of dollars annually by helping to lower jail populations and is user-funded, not taxpayer-funded.
  • The commercial bail industry offers many layers of financial commitments from the insurance company as surety on the bond, a bail agent’s own financial resources and third-party indemnitors who may bear a financial burden for a defendant’s failure to appear.
  • The commercial bail industry does not set bail amounts or have any say regarding bail schedules.  That is the purview of the courts and Judges.  
  • Bail agents work with people from all socio-economic strata’s – the poor, low-income, average-income, high-income and the wealthy.
  • Bond fees and rates are not determined by race, gender or socio-economic status but by strict bail schedules.
  • Bail agents charge a minimum fee to assume the risk of appearance for a defendant and are financially responsible for defendants until disposition of their case.
  • Commercial bail has the lowest failure to appear and recidivism rates of all forms of pretrial release.
  • Public safety is enhanced under commercial bail as bail agents continually assess the risk of a defendant to ensure a positive outcome.
  • Defendants remain in jail for numerous reasons and not just because they can’t afford a bail bond: immigration holds, probation violations, failure to appear, seriousness of the charge, a flight risk, awaiting transfer to a state prison or serving a sentence in the county jail.
The commercial bail industry agrees with the following:
  • Bail should not be a punishment, but a tool for ensuring a defendant appears at trial to ensure the integrity of the judicial system.
  • Judges should make a release decision based on the nature of the crime, a defendant’s flight risk and risk to public safety.
  • Judges should have the authority to deny bail to defendants accused of committing first-degree crimes, such as murder, carjacking, kidnapping and sexual assault, or other serious offenses that would cause the defendant to pose a risk to the community if released.
  • The goal should be to incarcerate people who need to be incarcerated based on their alleged crime and criminal history and find feasible and working solutions for releasing others.
  • Facilitating the pretrial release of defendants who pose little risk to the community would help alleviate crowded jail conditions and save taxpayers the costs of unnecessary incarceration.
  • A "risk tool" or "risk assessment," which is based on a defendant’s criminal history, the severity of the current allegation, failures to appear, violations of probation and other factors, can be a valuable tool in helping Judges determine the appropriate release method.
However, taking away the “human element” in determining a release method or decision is tricky.  Some proponents of eliminating all financial release believe that even a computerized tool can be used to assess defendants to determine if they can be released immediately after their arrest – either on their own recognizance or under taxpayer-funded supervision.  The release of course is "free" but perhaps not the supervision.  Nor perhaps is the required drug and alcohol screenings, anger management classes, drug treatment or other monitoring methods.  But – the release is free and the defendant is not taking up space in a jail bed.  And they may not even be indigent and can afford their own release and perhaps have even done so in the past.  Their crimes may not be “dangerous” as defined by a state statute but can still be very serious in nature or a repeat offense. 

But the defendant is not paying a bail agent for their release so that makes it all okay.

Many taxpayer-funded pretrial services programs accept defendants charged with a wide range of criminal offenses, including violent and career felons, many of whom can afford their own release.  And the level of supervision and interaction with that defendant can be very different from what a bail agent requires. 

So what is the solution?

Eliminating a private industry that has a proven track record of success and effectiveness in making sure defendants appear for court and that has been around for centuries, and replacing it with a wholesale bureaucratic release and supervision system funded by taxpayers, is not the answer. 

Can release mechanisms and processes be improved regarding which defendants are released and how pending disposition of their case?  Of course. 

Judges have the authority to release anyone on their own recognizance and often do so.  Such authority allows for low-income or poor defendants who have committed a minor crime to be released in a timely manner without an unnecessary financial burden. 

But do the taxpayers want defendants charged with domestic violence, dating violence, failures to appear, violations of probation, carrying/possessing concealed weapons, burglary, robbery and fleeing/eluding law enforcement to get a free "get out of jail” card?

Where do we stop the free release for repeat offenders of DUI, driving with license suspended/revoked, property crimes, drug crimes and grand theft/petit theft?

Because taxpayers are paying for those releases everyday across the country where taxpayer-funded pretrial services programs operate.

Defendants should hold some accountability for their release when arrested for an alleged crime.  Whether that means they must secure financial release under the supervision of a private bail agent or warrant taxpayer-funded release with conditions, both release systems should work together to ensure the criminal justice system is working effectively. 

Those defendants who are charged with a first-time, non-violent offense can be eligible for taxpayer-funded release or release on their own recognizance.  

But when the crimes increase in severity or frequency, financial release with conditions should be imposed.  Bail agents live and work in their communities and want their family and friends to live in a safe environment.  

The commercial bail industry gladly welcomes the opportunity to have a strong working relationship with the courts and taxpayer-funded pretrial services systems to make sure defendants are being released appropriately and supervised adequately.