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. 

NAPSA Bans NC Clerk of Court from Conference

The Honorable Brian L. Shipwash, Davidson County Clerk of Superior Court in North Carolina, has been a steadfast advocate for holding the criminal justice system accountable - both in the private surety bail industry and in the government-funded pretrial services arena.

In every industry a few individuals can create a negative opinion that can sometimes reflect on an entire industry. The private surety bail industry works diligently to promote the professionalism of our agents, helping the public and elected officials to understand that we are small business owners who provide a valuable service that has a direct affect on public safety and taxpayer savings. Bail agents do not tolerate the few who choose to disparage the industry through unethical practices.

Nor does Clerk of Court Shipwash. Over the last seven years, Clerk of Court Shipwash has taken the private surety bail industry to task in his county and state, making sure bail agents are adhering to statutes in the interest of justice. When they weren't, he steadfastly worked to ensure they followed all of the laws of his state and if not, they were no longer allowed to operate. He also exposed poor oversight by the state's Department of Insurance, who is charged with licensing bail agents, for not properly making sure all licensure practices were followed.

Clerk of Court Shipwash was clearly not favoring the private surety bail industry, but holding the industry accountable. It is something he also expects from government-funded pretrial services programs. One would think that government-funded pretrial services programs would welcome this type of subjective feedback and would value Clerk of Court Shipwash's desire to make both industries accountable in terms of public safety and the wise use of taxpayer dollars. However, that is not the case.

Clerk of Court Shipwash has been vocal in his expectations that government-funded pretrial services programs should concentrate on defendants most likely to benefit from their services in order to maximize the amount of taxpayer dollars going to fund such programs. Through data that Clerk of Court Shipwash has obtained, he does not always support the claim of government-funded pretrial services programs that such programs have a direct affect on reducing jail populations. In fact, across the nation jail populations have significantly dropped yet funding for government-funded pretrial services programs have not decreased. If pretrial services programs focused on their true purpose - to secure the release of indigent defendants charged with nonviolent, first-time offenses - then perhaps they would garner more support from those who doubt their value. But today, most government-funded pretrial services programs do not consider indigency to be a factor for release and defendants charged with serious offenses with lengthy criminal histories are routinely released through these programs. Clerk of Court Shipwash believes that government-funded pretrial services programs should be created and maintained in anticipation of criminal justice needs rather than in response to jail overcrowding problems.

Clerk of Court Shipwash paid to attend the National Association of Pretrial Services Agencies (NAPSA) annual conference in San Diego, which is taking place this very week, to learn more about how he as an officer of the court could continue to work in partnership with both government-funded pretrial services programs and the private surety bail industry. But instead, he was told via a letter that he could no longer attend the conference.

Clerk of Court Shipwash received a letter from NAPSA where he was informed "your active involvement in the commercial bail bond industry and that industry's active endorsement of bills that are meant to limit and restrict the mission of pretrial programs is in direct opposition to our goals and standards. As such, the Board has determined that it would be inappropriate for you to attend. It also begs the question as to why you would want to attend if not to gather information that could be fashioned and used against pretrial programs in furtherance of the bail bond industry's agenda."

Clerk of Court Shipwash was not willing to accept this dismissal via a form letter as he felt the NAPSA board needed to hear why he wanted to attend the conference as well as his philosophy of holding both industries accountable. So he went to San Diego to plead his case. After all, he is an elected official of the court and a member of the criminal justice system. Surely an agency such as NAPSA would understand that reasoning and reconsider granting him admission to their conference.

Absolutely not.

Clerk of Court Shipwash was still denied entrance at the conference - but not only by NAPSA but also by their fellow sister organization, the Pretrial Justice Institute (PJI), which contributes significantly to the NAPSA conference and their overall goals and objectives. Now we have two nonprofit organizations saying an elected official of the court cannot attend their conference.

So while the private surety bail industry has welcomed Clerk of Court Shipwash's involvement to make the system even more accountable to the courts and the taxpayers, these nonprofit organizations whose mission is to eliminate financial bail, clearly sent the message that they don't need any feedback or partnership with Clerk of Court Shipwash. And being an elected official doesn't matter where they are concerned.

Could the reason for this public rejection be based on the fact that Clerk of Court Shipwash has sought to provide accountability to the government-funded pretrial services arena by insisting that the indigent population be served by such programs instead of using taxpayer dollars to release defendants who are able to secure their own release? Could the reason be that Clerk of Court Shipwash has data and performance statistics to show that not all pretrial services programs are adhering to NAPSA and PJI goals of operation? Could it be that Clerk of Court Shipwash and others are pointing out to citizens and elected officials the kind of defendants being released on our tax dollars that greatly affects public safety?

If such information was not true there would have been no need for Florida and other states to enact a Citizens' Right-to-Know Act, which requires pretrial services programs to provide detailed data on defendants released through their program so that the public could ascertain if their tax dollars were being put to good use. There would be no need to exclude others from their conferences or from collaborating together to make the criminal justice system better.

These are organizations that receive significant federal tax dollars and yet they have the audacity to exclude not only private citizens who have paid to attend their conference, but also an officer of the court.

What are these goverenment-funded organizations trying to hide?

The Pretrial Justice Institute Should Tell the Whole Truth

The Pretrial Justice Institute (PJI), an organization whose mission is to promote government-funded pretrial release services across the country, recently posted a blog article indicating that Pasco County, Florida Sheriff Bob White was unduly seeking an increase to his budget. The PJI claimed such a budget request would be unwarranted if the Sheriff had not eliminated the jail's government-funded pretrial release program. According to the PJI, there would be no need to request additional funding for deputies to fight crime and make our streets and neighborhoods safer because the pretrial release program, "operated to facilitate the pretrial release of defendants who were deemed to be low-risk, while ensuring high-risk defendants were detained," before it was eliminated.

Really? Only low-risk defendants were released?

Well if you believe that individuals charged with . . . battery, domestic violence, driving under the influence and with a minor; possession of and trafficking in controlled substances, heroin, cocaine, cannabis; aggravated battery, aggravated battery with great bodily harm, aggravated battery on a pregnant person, hindering communication with law enforcement, burglary, grand theft, intentional threat to do harm, carrying a concealed firearm, aggravated assault with a deadly weapon, battery by strangulation, driving with license revoked as a habitual offender, driving with no valid driver's license and other serious driving offenses . . . are deemed to be, "low risk," I would venture to say that you would be in the minority. Except for proponents of government-funded pretrial release programs.

Because you see, individuals charged with these very same offenses are routinely released every day into pretrial release programs using your tax dollars with less oversight than provided by the private surety bail industry. Some programs have judges releasing defendants into these programs while others allow jail staff to make the release decision. Legal challenges have already prevented jail staff from making release decisions in Florida counties.

So what else did the PJI not share in their blog posting? Lots.

The Pasco County Sheriff's Office eliminated its government-funded pretrial release program in 2007 - not 2009 as PJI stated. This was done as a budget-cutting measure in order to put more deputies on the street. By doing so, the Sheriff actually saved taxpayers $348,000 annually. As proponents of government-funded pretrial release programs always say when any budget cut is proposed for their program, the PJI and pretrial release practitioners claimed that without Pasco County's pretrial release program, defendants would languish in jail for weeks, months and years because they could not afford monetary release. What Sheriff White already knew was that defendants were able to pay for their own release from his jail while others were routinely released on their own recognizance. The Pasco County pretrial release program was not one that was efficient enough to keep so it was eliminated.

And guess what happened?

In 2008, the jail's population increase was only five defendants over the previous year when the program was still in place. When considering the population growth of Pasco County during that same time, there was a net decrease in per capita jail bed days.

Pasco County Commissioner Michael Cox, in a 2010 letter to Florida Legislators, stated it had been the county's experience that the pretrial release program had no effect on reducing the jail's population and through elimination of the pretrial release program, "the reality is that we have seen no measurable increases in jail population." He went on to say that the county's experience has shown that, "defendants appear in court at higher rates if they are under the supervision of a surety agent." In his final paragraph, Commissioner Cox summed it up as follows: "The bottom line is that our Sheriff eliminated an un-needed program that has not caused the negative reaction that many people projected. What it did was allow Pasco County to have four additional deputies on the street."

In addition, Pasco County Commissioner Jack Mariano wrote a similar letter to Florida Legislators in 2010 stating that, "we eliminated our pretrial release program; some said it would cause jail overcrowding. It did not." Commissioner Mariano felt that defendants who had to pay for their own release from jail were more responsible for their own conduct. In his words he said. "I for one would rather have the private industry tracking down defendants than have to use precious county resources to do so." By eliminating the pretrial release program, "this allows the Sheriff to have more boots on the street and has kept Pasco County safer as a result."

The PJI states that, "$90 million is a lot of money to spend on corrections, particularly when this recession has created so many other pressing needs." Did the PJI not fully understand the other responsibilities of the Pasco County Sheriff's Office besides running the jail? Seems not.

You see, the Sheriff's Office is responsible for providing law enforcement services to Pasco County's 500,000 residents as well. This includes responding to approximately 250,000 calls for service annually in addition to running other critical programs within the Sheriff's Office: the Uniform Operations Bureau, the Criminal Investigations Unit and the Communications Unit. These three critical components of the Sheriff's Office comprise numerous functions and law enforcement services to the citizens of Pasco County. To imply that all $90 million of the Sheriff's budget is used strictly to manage the jail is very misleading and totally inaccurate. And remember, approximately $1.6 million of the Sheriff's budget is allocated to health insurance and pension costs, which are out of his control.

The PJI would have us all believe that if not for a government-funded pretrial release program, judges would simply have to, "guess the risk level" of a defendant in order to make a release decision. The Pasco County jail's Central Booking section provides inmate processing for all law enforcement agencies operating within Pasco County. Inmates are frisk searched, photographed, fingerprinted, entered into and released from the inmate management system. Central Booking conducts various computerized checks for each arrest and release. In 2008, the section processed a total of 37,666 inmates. In addition, both the State Attorney and the Public Defender have information on a defendant's criminal history and community ties during the defendant's initial appearance before a judge if they haven't already been released, and this information is shared with the judge in order to make an informed release decision.

The PJI's real beef, along with their partner, the National Association of Pretrial Services Agencies (NAPSA), is that many defendants are able to post a monetary bond for their release and that fact is against all that the PJI and NAPSA believe in. You see, both organizations have as their standards that, "compensated sureties should be abolished." They also believe that financial conditions for release from jail should, "never be used in order to detain the defendant." Regardless of their alleged crime.

The need to have to hire additional deputies in Pasco County, and counties all across our country, in order to keep our neighborhoods and communities safe may not be one we would all choose in a perfect world. In these tough economic times many government and private organizations alike have to make hard budget decisions. But public safety should be the last element cut if at all possible. Taking money from the Sheriff to hire additional deputies, which based on his experience and wisdom as Sheriff is not something he would just ask for if not needed, and instead using those taxpayer funds to re-establish a pretrial release program based on the philosophy that financial conditions should never be imposed for release from jail - regardless of the alleged crime or the ability to pay for release - is not a, "re-evaluation of how to best spend taxpayer dollars on community corrections."

Only a person with a heart of stone could read the PJI's advice without laughing!

Pretrial Release Facts - National Public Radio

National Public Radio recently did a three-part series on pretrial release in jails across the country; so many of the points in the series were completely nonfactual, that the private surety bail industry needed to set the record straight and let the taxpayers know the truth. From the series, it was clear that NPR already had a bias toward the continuation of taxpayer-funded pretrial services/release programs.

Mr. Dennis Bartlett, Executive Director of the American Bail Association and one of the foremost experts on bail and pretrial services, recently wrote an article to refute facts highlighted in the NPR series:

"NPR mentioned in their series that about 500,000 inmates are languishing in jails for want of bail. A quick check of the data published by the Bureau of Justice Statistics (BJS) shows that indeed, there are about 500,000 non-convicted defendants held in the nation's jails. They constitute about 63 percent of the total jail population of about 780,000 inmates.

The NPR story is fallacious in that it gives the impression of a great mass of unfortunates stuck in jail, like some medieval black hole in Calcutta. This is far from the case. The cohort of 500,000 non-convicted defendants is not static. Over a year almost the entire cohort turns over by people coming into the system on new arrests and people exiting on bail, going back to freedom after case closure or getting on the Department of Corrections bus to head for the penitentiary after conviction.

Some will not get out on bail. Why? Some further facts which are all supported by the Bureau of Justice Statistics:

• Half of those arrested were already on probation, out on bond or parolees
• Seven-out-of-ten arrested had prior convictions
• Four-out-of-ten had served three or more sentences
• Over 60 percent were on regular drug usage, 40 percent were intoxicated at the time of the offense and 42 percent were current enrollees in a substance abuse program
• Jails are also the largest repository for the mentally ill

Recently the Pretrial Justice Institute was granted a $250,000 award by the Public Welfare Foundation to justify the expansion of pretrial services by means of an educational program aimed at state lawmakers to handle the horde of 500,000 inmates stuck in jail without bail. Initially at least, and in light of the BJS figures above, it appears that the grounds for getting this grant are spurious."

Thanks Dennis for your ongoing contributions to the private surety bail industry!

More corrections regarding the NPR series to come . . .