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.

The Wisest Use of Your Tax Dollars

There is an increasing push to establish taxpayer-funded pretrial services programs across the country and to eliminate financially secured bail.  Why?   Advocates of using more of your tax dollars to perform a function that the private industry is extremely effective at, cite various reasons.  One is jail overcrowding because people can’t afford financial release.  Another is that financial release discriminates against the poor.  Yet another is that financial release is not evidence-based or objective.  Another is that financial release doesn’t look at risk for flight or risk to public safety.  Another is that financial release elevates the economic status of the defendant over assessment of risk. 
 
In other words, is a system that has operated successfully and efficiently for centuries, ensuring that defendants appear for all required court appearances using no taxpayer dollars, no longer valid or needed?  Are taxpayer-funded pretrial services programs the panacea to all of the woes in the criminal justice system?
 
By their own definition, advocates for such programs state that: pretrial services programs are an alternative to incarceration and provide all criminal court defendants that are initially unable to post bail, the opportunity to be interviewed to determine eligibility for release from jail under a supervised program.   How is it determined that such defendants are unable to post bail?  There are many defendants who have been and are able to post bail for prior and current criminal arrests but instead are given free release by the taxpayers.  Many defendants have been released on taxpayer funds when they are not even declared indigent by the court.
 
They go on to say: Pretrial services release is mainly for defendants accused of minor crimes who can demonstrate that they live in the community and pose no threat of flight or danger to the community at large.
 
There are literally thousands of examples of defendants released on taxpayer funds to be “supervised” in the community and who are charged with serious and violent offenses, many with lengthy criminal histories, violation of probation and failures to appear for court.  The contention that only defendants charged with minor crimes are released on taxpayer funds is a ruse to get more funding for their programs.
 
Those who promote the elimination of financially secured bail continue to try and make the taxpayers believe that our pretrial justice system is broken because defendants must either pay bail or wait behind bars for their court date.  Proponents of taxpayer-funded programs claim they save the taxpayers millions of dollars by securing the release of defendants who otherwise would languish in jail without them.  Money is the sole reason that is causing the unnecessary incarceration of the defendant.  Money is stopping them from returning to their family and jobs.  Money is causing jail overcrowding across the country because defendants can’t afford their release.
 
So the alternative is to release individuals on taxpayer funds through pretrial services programs, comprised of employees that often have little or no experience in supervising defendants.  And yet they are tasked with ensuring defendants are complying with the conditions of bond and keeping citizens safe. 
 
In contrast, public safety is enhanced under financially secured bail as bail agents continually assess risk of the defendant to include regular check-ins, ongoing communication with the defendant and indemnitors, court reminders and monitoring to avoid a failure to appear.  Why?  Because bail agents are physically and financially responsible for defendants released on bail.  If that defendant fails to appear for court, the bail agent must repay the full amount of the bond to the court. 
 
When people are arrested, they have several options for release, with financial bail being one of them.  Taxpayer-funded pretrial services programs play an important role in the criminal justice system, which is interviewing defendants prior to their initial court appearance and compiling criminal history information for the judge to make an informed release decision.  Such programs were never designed to supervise the types of defendants or the number of defendants they are today.
 
The private commercial bail industry understands that many counties are still facing difficult financial times and that they are seeking ways to be as innovative as possible.  Likewise so is the commercial bail industry.  All of us must do more with less.  All the more reason to focus our resources and expertise in areas of the criminal justice system that save taxpayer dollars and protects public safety.
 
Taxpayer-funded pretrial services programs should focus on the non-violent, first-time offenders who pose little threat to community safety or those defendants who are truly indigent and have been arrested for a minor crime.  The commercial bail industry has years of experience in supervising the more violent offenders and those with lengthy criminal histories.  And, we use our own resources to do so.
 
As the commercial bail industry has said before and will continue to say . . . 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?
 
The commercial bail industry is a willing partner but is the taxpayer-funded pretrial services system?  We welcome the opportunity to come to the table as friends instead of foes.

Safer Release Methods in Place at the Orange County Jail vs. Pretrial Services/Release

As of 11/30/2009, there were 1,861 arrests made over a 30-day period in Orange County, Florida. A snapshot of 500 recent defendants booked into the jail over a period of a few days covering the 30-day period, and their associated charges, reveal that crime is not down nor necessarily less violent. Many of the arrested individuals had multiple charges. Prior to November 5, 2009 and before the Chief Judge of the Ninth Judicial Circuit reversed himself and amended the administrative order govering release from jail, 34 of the offenses for which these 500 individuals were arrested on were eligible for "administrative pretrial release" whereby jail staff would make a release decision without any judicial involvement.

Based on a citizen and media campaign by the private surety bail industry, and backed by facts showing the types of crimes defendants were being released on without any judicial involvement, the Chief Judge revoked "administrative pretrial release" and ordered that only a judge could release an individual into a pretrial release program in Orange County. The industry had argued that pretrial release programs offer minimal supervision for defendants charged with serious offenses, many of whom had prior criminal histories, and that tax dollars should not be spent to provide a service that private industry does for free with much more successful results. Due to pending legal litigation on behalf of Accredited over such release, someone decided to listen to us.

So you have a better understanding of the types of crimes individuals are continuing to commit in Orange County, Florida, below is a breakdown of such offenses for the snapshot of the 500 arrestees over the course of just a few days:

• DUI - 58 offenses total, 3 of which included prior arrests
• DUI manslaughter - 1 offense
• DUI vehicular homicide - 1 offense
• Possession of cocaine - 16 offenses total, to include 7 with intent to sell/deliver and 3 with armed possession
• Possession of cannabis - 43 offenses total, to include 8 with intent to sell/deliver
• Possession of drug paraphernalia - 27 offenses
• Possession of controlled substance - 16 offenses total, to include 8 with intent to sell/deliver/traffic
• Possession of heroin - 4 offenses total, to include 2 with trafficking
• Buglary of a dwelling - 9 offenses total, to include 2 to an occupied dwelling and 1 with assault in an occupied dwelling
• Burglary of a structure/conveyance - 12 offenses total, to include 1 to an occupied structure/conveyance and 1 armed burglary
• Robbery - 8 offenses total, to include 6 with force or a weapon
• Carrying a concealed weapon/firearm/ammo - 18 offenses total, to include 1 by a minor, 1 with altered serial number, 4 by convicted felons, 3 by convicted felons in commission of a felony, 1 with firearm/ammo in domestic violence context and 1 possession of ammo by convicted felon
• Carjacking with a firearm - 2 offenses
• Battery - 18 offenses total, to include 4 on law enforcement/security and 1 felony battery
• Aggravated battery/assault - 17 offenses total, to include 1 causing permanent disfigurement, 11 with a weapon and 2 on law enforcement with a deadly weapon
• Assault - 2 offenses
• Aggravated battery on a pregnant person - 4 offenses
• Domestic violence - 49 offenses total, to include 4 by strangulation and 2 with hindering communication with law enforcement
• False imprisonment - 3 offenses
• Stalking/aggravated stalking - 4 offenses total, to include 1 after an injunction
• Kidnapping with intent to commit felony - 1 offense
• Sexual battery - 3 offenses total, to include 1 with a weapon
• Sexual battery on a child - 3 offenses
• Show obsence material to a child - 1 offense
• Lewd/lascivious conduct/molestation - 2 offenses
• Petit theft - 16 offenses total, to include 4 with prior arrests
• Retail theft - 2 offenses
• Dealing in stolen property/pawn broker - 4 offenses
• Tresspassing - 16 offenses
• Driving with no valid driver's license - 15 offenses
• Driving with license suspended/revoked - 57 offenses total, to include 7 with knowledge and 11 habitually revoked
• Grand theft - 29 offenses total, to include 1 grand theft, 27 grand theft 3rd degree ($300-$5000) and 1 grand theft 1st degree (>$100,000)
• Reckless driving - 5 offenses
• Driver's license violation/expired tag/no registration/no endorsement - 9 offenses
• Threatening a public servant - 1 offense
• Disorderly conduct/intoxication - 14 offenses
• Criminal mischief/loitering or prowling - 11 offenses
• Open container/panhandling - 6 offenses
• Resiting law enforcment officer - 34 offenses total, to include 2 with violence
• False reports/ID to law enforcement - 5 offenses
• Fleeing/eluding law enforcment with lights and sirens - 7 offenses
• Destruction of evidence - 3 offenses
• Leaving scene of an accident - 4 offenses
• Staging motor vehicle crash - 1 offense
• Fraud/scheme to defraud - 8 offenses total, to include 2 for uttering forged check/bills, 1 defrauding an innkeeper and 1 exploiting the elderly
• Retailiating against a witness - 1 offense
• Violation of an injunction - 2 offenses, 1 for repeat violence (non-intimate partner) and 1 for domestic violence
• Unlicensed health practices - 2 offenses
• Desertion - 1 offense
• Prostitution - 1 offense
• Unlawful use of two-way communication device - 2 offenses
• Child abuse - 1 offense
• Attempted murder - 2 offenses
• Fugitive from justice - 2 offenses
• Failure to appear - 16 offenses
• Violation of probation - 32 offenses

Previously individuals arrested for such offenses would be asked if they wanted to get out of jail free or pay a bail agent to get out. In these tough economic times, what do you think the answer would be? But also ask yourself who is responsible for ensuring appearance in court until the case is resolved.

Defendants walking out of the jail under the pretrial release program rarely have face-to-face contact with jail staff and most are usually required to simply call into an automated telephone system for supervision weekly or bi-weekly. In contrast, defendants released on bail are integrally involved with their bail agent and have a network of family and friends involved in the bail contract to ensure compliance and no new law violations. Agents are financially and physicially responsible for defendants they release on bail - they don't show for court, the agent MUST by law pay the FULL bond amont, and not just the premium, back to the court within 60 days. Under a pretrial release program, more of your tax dollars are spent to find, re-arrest, re-book and then go through the court process once again. A excessive use of your tax dollars!

The private surety bail industry is committed to protecting public safety and ensuring the wise use of taxpayer funds. We stand behind you and will help protect you and our families.

Orange County, Florida Jail: Administrative Pretrial Release Function Revoked

Administrative pretrial release, which allowed jail staff to release defendants without any judicial involvement, has been revoked by the Chief Judge after the private surety bail industry made elected officials and the public aware that defendants charged with serious and repeat offenses were routinely being released through the program. Tax dollars are used to manage and support such release.

Belvin Perry, Jr., Chief Judge of the Ninth Judicial Circuit in Orlando, Florida, amended his administrative order to prohibit release into the pretrial release program until initial appearance in front of a judge. Prior to this amended order, jail staff would release defendants charged with serious and/or repeat criminal and traffic offenses as delegated by the administrative order and the Chief of Corrections. Many of the released defendants had prior lengthy criminal and traffic histories, failures to appear and violations of probation.

Effective November 5, 2009, all defendants not released on a cash or surety bond within 24 hours of arrest, will attend an initial court appearance where a judge will make an informed release decision based on the criminal/driving history of the defendant, economic/social status, residency etc. The history provided to the judge must be certified as accurate by the pretrial release program.

A week prior to amending the administrative order, a Petition for Common Law Writ of Certiorari was filed with the 5th District Court of Appeal on behalf of Accredited challenging the administrative release process by non-judicial staff. The amended order validates Accredited's position that pretrial release must be a solely judicial decision. Judges are elected officials and accountable to the voters; jail staff and other "lay" individuals are not.

Bail agents work and live in our communities and take the issue of public safety very seriously. Bail agents are financially and physically responsible for defendants released on bail and integrate a defendant's family and friends into the bail contract. A much higher level of supervision is given to defendants released on bail without using any taxpayer funds. National studies have shown that private surety bail is the most efficient and effective method of pretrial release and guarantees a defendant's appearance in court.

Public policy affects public safety!