Giving of Thanks and Free Pretrial Release

Thanksgiving is a time of giving thanks and celebrating the holiday season with family and friends. Unfortunately it is also the time for taking.

Crime often increases with the beginning of the holiday season. Burglaries, car thefts, shoplifting, robberies, violent crime and other crimes happen with more frequency and can affect any of us. Sadly, the “peace on earth, goodwill toward men” adage isn’t believed by all.

Our hope is that those individuals who choose to commit crimes in our communities will be held accountable for their actions and not just given a slap on the hand. That accountability starts with how a defendant is released after arrest if they are eligible for release.
The private surety bail industry believes that public safety and the wise use of taxpayer dollars should be considered foremost when making a release decision from jail. Too often career criminals with lengthy criminal and driving offense histories, failures to appear and violations of probation continue to be released on taxpayer funds through pretrial services programs. These programs have been couched by proponents as the ONLY means to reduce jail populations and truly protect public safety. Where once such programs were designed to target indigent defendants charged with minor, non-violent crimes, today they say everyone should be entitled to taxpayer release.

Proponents of pretrial services programs say that if people are staying in jail because they can’t afford to get out, that is not fair! Is it fair to the person who was a victim of crime that their perpetrator can be released on their dime? We are talking about people who have been arrested and accused of committing a crime. The fact that pretrial services programs claim it is "offensive" to ask these arrested individuals to do anything whatsoever to inconvenience them to get released from jail is in-and-of itself offensive.

One undeniable fact is this: when someone is released on a bail bond, it doesn’t cost the taxpayer anything! That bail agent is completely financially and physically responsible for the defendant. Bail agents are small business owners who are trying to make a living and make a difference in their communities at the same time. They bail out good and bad individuals everyday but do so knowing they are serving a public safety purpose. Some people make mistakes and find themselves in trouble with an arrest; others flaunt the law and continue to commit crimes until they are caught. Bail agents work with both sides of this spectrum. And bail agents risk their lives to find people who have absconded from court and their responsibility to receive their sentence.

And now, they must compete against the government who wants to release arrested individuals back in to the community. Who then should bear the burden for making sure those released individuals come back to court? Should it be the taxpayers or private industry? If you release someone through a pretrial services program, let them out the front door so to speak, if they don’t show up for court law enforcement is called to try and find the absconded individual using more of our tax dollars.

You see what pretrial services programs won’t publicly tell anyone is that they target people that are likely to post bail. Why? Because they know they are better “candidates” to show up for court as they have done so in the past. Indigency isn’t even considered in most pretrial services programs. You can be a wealthy individual who has means and assets, be charged with a crime, and still be released by taxpayer funds!

Pretrial services programs claim they are essential because they “monitor” people for drug/alcohol testing or electronic monitoring while awaiting case disposition. Some do and some don’t. However, we tend to forget a fundamental principle and that is, a person is innocent until proven guilty. Our society has taken upon itself to assume a paternalistic role to force people who have not yet been found guilty of a crime into “programs” before they have had a trial and a disposition of the case. To engage in an “intervention” and force people into programs before they have had their day in court is suggesting we know what is best for someone else. People may not have to pay for a bail bond, but they are paying through pretrial services programs, which can add up to much more than a one-time bail bond would.

When pretrial services programs get on their soap box and tell the world that it shouldn’t matter how much someone makes or what crime they may have been charged with in order to eligible for a pretrial services program, it says loud and clear that we’ve lost our path of getting back to the fundamentals of what the pretrial stage of accusation is all about.

So those who commit a crime this Thanksgiving holiday may very well be given an expression of thanks or an act of giving on the part of pretrial services programs . . . in the form of free release on your tax dollars!

Pretrial Justice Institute States: Connecticut state officials begin to question whether the state’s bail industry protects the public

The Pretrial Justice Institute (PJI) is a nonprofit organization whose mission is to advocate nationwide for “fair and effective” pretrial practices that eliminate inappropriate detention, optimize diversion from prosecution, and maintain community safety.  They, like their sister organization, the National Association of Pretrial Services Agencies (NAPSA), have aggressively and publicly stated that compensated sureties should be eliminated.  You see, these organizations believe that no one should have to pay for their own release from jail despite whatever crime they have allegedly committed.  These defendants should just be able to walk out of jail with a “promise” to return for court or the taxpayers should pay for their release through government-funded pretrial services programs! 

So the private surety bail industry always finds it humorous when the PJI attempts to advocate for increased release on taxpayer funds stating that such release “maintains public safety.”  The private surety bail industry has been functioning for decades and has been proven by numerous national studies to be the most effective and efficient means of pretrial release.  When you have your own money on the line for your release . . . or that of your parent’s, grandparents or friend’s . . . you inherently have more incentive to behave and attend all of your court hearings. 

A recent article in the Connecticut Post (CTpost.com) entitled “Officials say Connecticut's bail system in need of major reforms” highlighted this issue of bail agents undercutting and discounting bail bonds and the problems that such practices cause.  As the private surety bail industry has repeatedly stated, it does not condone bail agents who engage in unethical and unprofessional behavior, such as undercutting or discounting bail bonds for defendants.  The overwhelming majority of bail agents across this country abide by the laws and regulations of the industry because they live and work in the same communities they release defendants into.  They do care about public safety.

However, as is the practice of the PJI, they posted a blog article that conveniently failed to point out the reality of bail releases in the criminal justice system.  Thus, we felt it necessary to offer our point of view and highlight several instances regarding the PJI’s negative slant toward the bail industry in the Connecticut article:

·         The article stated that there are more than 17,000 accused felons in Connecticut who have skipped out on their bail bonds.  According to Connecticut’s state Judicial Branch, there are 17,856 pending cases in the state in which criminal defendants failed to appear for their court cases while either free on bonds or on written promises to appear.  Written promises to appear (release on recognizance) are issued daily by either the Judge or jail personnel but NOT the bail agent.  To slant the perception that all failures to appear are solely due to the bail industry is completely false.

·         National research has shown that the vast majority of defendants who fail to appear on a bail bond are apprehended and rearrested by their bail agent and brought back to the jurisdiction of the court at no cost to the taxpayer.  When a defendant fails to appear on a “promise to appear” or other taxpayer-funded release mechanisms, more tax dollars are simply spent to try to find them taking valuable time away from fighting and preventing crime.

·         PJI’s blog stated that “unfortunately, a criminal justice system that primarily leaves the decision of pretrial release to a for-profit industry will never protect communities from dangerous individuals.”  Again, a totally false statement.  The Connecticut article clearly stated that it is the Judge who has the ultimate authority to decide to give a defendant a bond or order the defendant held without bond.  The bond amount is set based on the recommendation of a state bail commissioner, who has interviewed the defendant, and following arguments from prosecutors and defense lawyers.  It is based on this detailed information and dialog, which the bail agent is never a party to, that the Judge sets or denies bail.  Once bond has been granted the bail agent is simply a tool to affect the release of the defendant – in no way is the release mechanism the decision of the bail agent!

·         The PJI blog also stated, “the only release requirements bondsmen have to satisfy are financial – which means that, even where bondsmen are requiring the mandatory 10% fee from defendants, dangerous defendants with money will obtain release.  Connecticut does not require its bondsmen to screen defendants for risk or likelihood of re-arrest – which means bondsmen, will only ever make their decisions based upon financial incentives.”  Bail agents assess the risk of each and every defendant they release on a bail bond as in the end it is their livelihood on the line.  Yes, financial incentives are a part of the equation as with any other business decision.  However, bail agents put their lives on the line each and every time they must pursue a defendant who has failed to appear.  As a citizen, I would much more appreciate knowing that when a criminal defendant willingly fails to appear to accept their judgment in court, that someone who has a financial incentive to find them is looking for them rather than a government worker sitting in an office who has no face-to-face interaction with the defendant or their family, and simply pushes a paper to the court when a defendant fails to appear. 

·         The PJI also asserts that “defendants charged with very serious crimes are likely to have higher bonds placed on them, they will inevitably represent higher income for bondsmen, making them the most appealing clients.”  The bail industry is often a family business and as such, bail agents often interact with other families unfortunately involved in the criminal justice system.  Repeat offenders tend to go to a bail agent they know and trust and these individuals make up the “bread and butter” of a bail agent’s business.  Yes, defendants with high bond amounts who seek out a bail agent are welcomed if the risk is good.  However, the vast majority of bonds posted by a bail agent are the small and repeat ones.

·         As highlighted in the Connecticut Post article, Bridgeport, Connecticut’s own State's Attorney, John Smriga, said the current system puts witnesses and victims in criminal cases in jeopardy because the “current bond statute makes it possible for violent offenders to get out of jail with little financial risk to themselves, creating a serious risk that these individuals will not comply with court-ordered conditions of release endangering victims and witnesses or simply not returning to court."  Bail agents don’t set the bond schedule; Judges do.  When violent offenders are released from jail, we believe the public would again much rather have someone with a financial incentive to be watching that defendant rather than a government worker who has nothing to lose when the defendant fails to appear or is rearrested. 

·         Connecticut state law also requires bail agents to accept promissory notes from defendants for release, which can put the bail agent in danger when attempting to collect on those notes. 

·         Representative Michael Lawlor, co-chair of the Connecticut legislature’s Judiciary Committee, acknowledges that those who pose a serious safety risk are let out of jail and those that don't often remain behind bars.  Jails with effective government-funded pretrial services programs should focus on such individuals who are truly indigent and have committed a non-violent offense.  However, these individuals are often over looked by government-funded pretrial services programs while they release defendants charged with serious offenses and who have the ability to secure their own release from jail.

The Connecticut article pointed out that Representative Lawlor has introduced bills five times in an effort to put controls on the bail bonds business yet each bill has failed.  The last bill would have required bondsmen to certify under oath on a form that they were charging the legal premium.   Professional and ethical bail agents shouldn’t have a problem with certifying under oath they have charged a defendant the legally required premium. Those that do shouldn’t be in the business.

Unlike the PJI, the private surety bail industry has been working with the Connecticut legislature and the Department of Insurance, at their request, for six sessions now in an effort to resolve the irresponsible bonding practices of the few bail agents who participate in unethical behavior.  This same legislature has rejected the government-funded pretrial services system that the PJI and others tout as they understand such system creates more problems than it solves.  The private surety bail industry will continue to welcome our involvement in bettering the criminal justice system in Connecticut and all other states.   

The problems that should haunt the citizens of Connecticut are the scare tactics the PJI is purporting and not the value the private surety bail industry brings to the criminal justice system.

Bail Industry Seeks to Ensure Safety

The Connecticut Post published an editorial on Monday, October 25 headlined “Bail system reforms are long overdue.” In certain cases, the private surety bail industry agrees.

 Like any industry in this country, there are a few bail agents who unfortunately create a negative image of the whole industry by engaging in unethical and unprofessional behavior. Competition has been at the forefront of business in this country for decades and can be a healthy incentive to increase the quality of service provided. However, competition turned to the negative can create situations that hurt many. The vast majority of professional bail agents across this county don’t condone undercutting bail bonds just to make a little more money over their competition because they know in the end, public safety will be affected.

What the public needs to remember is this: bail agents don’t make the decision as to who gets out of jail and on what method. Judges, who are elected by the citizenry, make the ultimate release decision for defendants charged with a criminal offense based on the facts presented to them. The bail agent is a tool for the court and the defendant to affect the release from jail if the Judge orders a secured monetary bond. The bail agent then contracts with the defendant and an indemnitor to secure the release and assure the court that the defendant will appear at all required court proceedings until disposition of the case. If the defendant fails to appear for court, the bail agent is responsible to either return the fugitive to justice or pay the bond to the court.

Bail agents must submit a “power” to the court to release a defendant, as issued by the insurance company who underwrites the bail agent. In essence, the “power” guarantees the full financial release of the defendant into the custody of the bail agent. Bail agents who choose to release a defendant on a “someone’s word” of future financial payment is not only doing so illegally, but they are going down a very slippery slope that the bail industry doesn’t condone despite the unsavory practices of other fellow bail agents. Professional and ethical bail agents shouldn’t have a problem with certifying under oath they have charged a defendant the legally required premium. Those that do shouldn’t be in the business.

Another key point is this: neither the bail agent, a taxpayer-funded pretrial release service nor the Judge who grants a defendant Release on Recognizance (a promise to appear) can guarantee to the court that the released defendant will not commit a new criminal offense while released from jail. Judges release hundreds of defendants on a promise to appear daily.

The private surety bail industry has a long and historic partnership in the criminal justice system and is the most effective and efficient means of pretrial release. Is the system flawed in some areas? Probably. Is the industry working hard to ensure that bail agents conduct themselves with the upmost professionalism and abide by laws of the state they post bail in? Absolutely. As the article stated, when dangerous people are taken into custody the system, and not the bail agent, need to ensure that they stay there.

The private surety bail industry will continue to promote the taxpayer and public safety benefits it provides in our communities.

Melanie Ledgerwood - Director of Government Relations
Accredited Surety and Casualty Company, Inc.