Commercial Surety Bail Update: 2013

The Justice Policy Institute (JPI) recently published a document entitled, “Bail Reform Update, 2013.”  As usual, JPI couched “bail reform” in a way that makes taxpayer-funded jail release sound like the next best thing since sliced bread.

JPI of course referenced their three research reports stating they show, “The weakness of money bail and for-profit bail bonding in the criminal justice system.”  They admit that most jurisdictions continue to rely on money bail for the pretrial release of defendants from jail; however they falsely state that money bail has, “Shown time and time again to be ineffective, unfair and expensive, threatens public safety and puts money in the pockets of the for-profit bail bonding industry.”

I guess all of the national research studies that have been conducted on the differences between secured and unsecured bail, studies that irrefutably show that secured release is the most effective and efficient means of pretrial release, just got it all wrong.

The National Association of Pretrial Services Agencies (NAPSA) also just celebrated its 41st year with their annual convention in Orlando, FL.  The opening session laid out the theme for the conference: “The current criminal justice system dehumanizes the people it is supposed to protect and drives those responsible for ensuring the system works to lose sight of justice.”  Makes you wonder who they are referring to with that statement: people arrested for an alleged crime or the victims of the alleged crime.

All of the discussion focused on what taxpayer-funded pretrial services programs want people to believe: research shows that people can be released from jail on non-monetary means and they will not pose a danger to the community or be a flight risk. 

The Pretrial Services Agency for DC, funded by federal tax dollars, is held out as the model program for releasing defendants on non-monetary conditions.  The agency is well resourced and judges are not elected but appointed by the President for fifteen year terms, which gives them some “political cover” in making release decisions.  Everyone arrested in DC is presumed to be released on personal recognizance (ROR) unless a judge deems otherwise; for the last two years about 3,000 people have been released ROR.  Every jail in the country should release defendants this way!

Proponents of a taxpayer-funded jail release system continue to try and convince the public that no defendant deserves to be held in jail with money bail; a risk assessment is all that is needed to determine the conditions of release.  What are such proponents saying about money bail?

 “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.”

“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.”

“Why send a person all the way down to the jail cells when a risk analysis says they will show up for court; 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.”

“If someone is arrested on a $50K bond and can’t even come up with the ten percent for a couple of weeks, look what that does for family, work . . . that is pretty disruptive.  People being arrested don’t have salaried jobs right?  If they don’t show up for work the next day they are fired.”

“We know that a system that we have, that can only be described as stupid, is also toxic.”

Yet with all of this posturing and negative attacks on the commercial bail industry, proponents of taxpayer-funded pretrial services programs admit that while there have been spurts of momentum for change away from money bail in the criminal justice system, they often seem to “fizzle” away. 

Even at the NAPSA conference in response to a conference plenary, the Executive Director of the Pretrial Justice Institute stated, “The speaker told us one thing that embarrassed us and caused us to look inside and that was simply this: when we come into the system we expect you to know what you are doing.  But do we know what we are doing?  We know what we want to do; we need to know why we do it.  But if we are going to be candid with ourselves, over the last 50 years we really haven’t known how to do it and how to do it right.”

So again we wish to take this opportunity to share how the commercial bail industry, evidenced through national and state research projects, has been proven to save taxpayers millions of dollars with a direct impact on public safety:

• Commercial bail lowers jail populations at no taxpayer expense; it is user-funded;
• Failure to appear on unsecured release is twice as high as those released on commercial bail;
• Defendants released on unsecured release were most likely to have a bench warrant issued due to a failure to appear;
• The recidivism rate is almost twice as high for unsecured release vs. commercial bail;
• A defendant is more than twice as likely to fail to appear for trial if released on taxpayer-funded release, without financial security, than if released on a private surety bail bond program;
• Defendants released through a commercial surety bond were less likely to miss their court appearance and become fugitives than defendants released through other means;
• Defendants released on surety bonds are 28 percent less likely to fail to appear than similar defendants released on their own recognizance;
• A defendant’s flight risk is lowered when they understand that family and/or friends will bear a financial burden for a failure to appear;
• Commercial bail offers many layers of financial commitments: the insurance company as surety on the bond; a bail agent’s contract with the insurance company; the bail agent’s own funds with the insurance company; and third-party indemnitors on the bond;
• Each bail bond written results in payment of insurance premium taxes back into county/state coffers;
• Economic savings result from lower failure to appear and recidivism rates;
• Economic savings result from increased fugitive recovery, which results in over 30,000 apprehensions each year at no taxpayer expense;
• Public safety is enhanced under commercial bail as bail agents continually assess risk of the defendant to influence a positive outcome: regular check-ins, ongoing communication with the defendant and indemnitors; court reminders; and monitoring to avoid a failure to appear;
• The non-refundable fee, or the premium, is the cost of assuming the risk of appearance for a defendant;
• A bail agent is physically and financially responsible for a defendant from the time of release on bail until disposition of the case;
  
• The one-time premium a defendant pays must cover all expenses, insurance costs and fugitive recovery fees if necessary and is good for the life of the bond;
• Bond fees and rates are not determined by race, gender or socio-economic status but by strict bail schedules; and
• Bail agents charge a minimum fee to assume the risk for a defendant as required by state statute. 

Defendants don’t automatically remain in jail because they can’t afford money bail:

• Defendants are less likely to be released from jail if they have a prior arrest or conviction;
• Defendants are less likely to be released from jail if they have an active criminal justice status or a prior failure to appear; and
• Defendants arrested for violent offenses or who have a criminal record are most likely to have a high bail amount or be denied bail. 

In addition, Judges always have the authority to release someone on their own recognizance if they feel the charge and criminal history warrants such release.  No money is required for this type of release. 

PJI’s bail reform update stated the commercial bail industry fights for and promotes legislation in our, “Continual quest to regain markets that base release on risk rather than money.”

In reality, the bail industry fights for and promotes legislation that:

• Improves appearance and enhances public safety;
• Creates transparency among taxpayer-funded pretrial service programs;
• Forces taxpayer-funded pretrial services programs to provide data and statistics to show their effectiveness and efficiency using tax dollars; and
• Highlights the pitfalls of ineffective release systems such as ten percent deposit bail, which has high failure to appear rates and a significant impact on the criminal justice system.

Most model legislation increases the regulation and accountability of the bail industry, not lessens it.  All legislation pertaining to the criminal justice system should promote public safety.

PJI's bail reform update also stated that the commercial bail industry, “Balks at attempts to collect forfeitures.”  Like every industry, there are a few that don’t follow the rules and create a negative perception for the majority.  The industry has been one of the first to blow the whistle on forfeiture abuses and works with many states’ Departments of Insurance to hold the industry accountable for bond forfeitures.  In the vast majority of criminal proceedings there is no forfeiture because commercial bail has done its job.  If bail agents did not pay their forfeitures, the industry would lose authority to write bonds and would quickly be out of business.

Then it was on to corrupt bondsmen; the report singled out a bail agent in NY that lost his license after engaging in practices that were deemed, “Reprehensible, unconscionable and unfair.”   Again, unfortunately a few can cause damage to the majority.  The report acknowledged that this particular bail agent is, “Not representative of every bondsman across the country.”  The commercial bail industry will continue to demand professionalism and lawful behavior in our profession at all times.

The commercial bail industry has a responsibility to educate the public regarding the taxpayer savings the industry provides.  We continue to acknowledge that taxpayer-funded pretrial services programs have a role in the criminal justice system, but not in the wholesale release of every arrested defendant.  Individuals who are truly indigent, have allegedly committed a non-violent crime and who have limited non-violent criminal histories, are those that should be reviewed for taxpayer-funded release programs.  We have not called for the elimination of these programs as they have for commercial bail.

Instead, PJI and other proponents of using taxpayer dollars to release arrested defendants continue to advocate for:

“Ending the use of money as a proxy for risk in pretrial systems”

“Eliminating the for-profit bail bonding industry in the criminal justice system”

“Increasing the use of pretrial services agencies to measure the public safety and flight risks of arrested individuals and supervise them during pretrial release”

Such proponents clearly state that, “Bail bondsmen are lobbying legislators and others because they don’t want their industry to go bye-bye.”   Advocating for the elimination of what they call the, “For-profit bail bonding industry” definitely sends the message that taxpayer-funded pretrial services programs don’t want to go “bye-bye” either.  Who is talking job security in that scenario? 

Many elected officials and the public are simply fed up with the marginal effectiveness of unsecured release methods.  Individuals who can afford their own release from jail should do so; indigent defendants should be given the benefit of release under taxpayer-funded pretrial services programs. 

To do anything less wastes taxpayer dollars and impacts public safety.  We all want fair and effective justice.