Sunday, July 13, 2014

Sheriffs Say "No" to Bondsmen

Here's a link to PJI's coverage of the National Sheriffs' Association Conference, in which the Sheriffs voted not to endorse the commercial bail bondsmen in any way.

The bondsmen -- I should say the bail insurance companies, who have been angling for this for a while -- wanted the Sheriffs to say in a resolution that commercial bail bondsmen were indispensably valuable to the criminal justice system. The Sheriffs said "no," and it's not really hard to see why.

Back in a 2012 resolution, the Sheriffs publicly recognized the value of high functioning pretrial services programs "to enhance public safety; promote a fair and effective justice system; provide assistance to sheriffs in the administering of a safe jail and reducing jail crowding; and help relieve the financial burden on taxpayers." The "whereas's" that set the tone for the resolution were especially telling. One said that a justice system relying on financial conditions of release at the pretrial stage is inconsistent with a fair and efficient justice system. Another talked about the purpose of limiting pretrial release -- to help assure court appearance and public safety. Yet another talked about how most pretrial inmates are incarcerated solely due to their inability to pay the secured financial condition of their bond. So, you see, you couldn't possibly expect the Sheriffs to endorse commercial bail bondsmen. Here's the breakdown.

The Sheriffs are concerned with public safety in addition to court appearance. The bondsmen, however, have no interest whatsoever in public safety, mostly because they don't lose any money if a defendant on one of their bonds commits a new crime. As long as the defendant doesn't miss court, a new crime is simply a new business opportunity for bondsmen. This represents a primary failure of the commercial bail bonding business -- there are two constitutionally valid reasons for limiting a defendant's pretrial freedom: (1) court appearance, and (2) public safety. Bondsmen and bail insurance companies only care about one, and it isn't public safety.

The Sheriffs care about a fair and efficient justice system. The bondsmen, however, like the idea of determining who gets left in jail based on how much money they have. This, of course, is the epitome of an unfair justice system. Moreover, when you base release on wealth, the people you leave in jail wind up costing a heck of a lot of money. It often costs communities $100 or more per day to house a defendant in jail, while release under the supervision of a pretrial services program or agency might cost only $5 per day or less. The inefficiencies associated with the administration of bail based primarily on secured bonds administered by commercial sureties are staggering.

The Sheriffs care about a safe jail that isn't crowded.The bondsmen, however, could care less about safe jails, and crowding jails is really the only thing that they're any good at. Ever since America changed to using primarily secured bonds administered by commercial sureties in about 1900, we have continued to have big problems with jail crowding. Basing release on wealth causes unnecessary pretrial detention. But basing release on wealth is the bondsman's raison d'etre.

The Sheriffs also care about relieving the taxpayers' burden. Here's the tricky one, because the bail insurance companies continually accuse pretrial services agencies of being "criminal welfare programs," etc., which cost the public more than bondsmen. The problem, of course, is that release to a bondsmen and release to a pretrial services program are two completely different things. Like I said, bondsmen only "supervise" -- if you can even call it that -- defendants to make sure they come to court. If a judge wants some sort of supervision to protect the public, the bondsmen can't (or won't) do it. It's just not in their business model. So whenever a judge orders some condition of release designed to give reasonable assurance of public safety in addition to court appearance, that judge has no choice but to rely on pretrial services program supervision to see it through. On top of this, remember when I said earlier that if a defendant doesn't have any money, bondsmen and bail insurance companies have no problem letting him or her sit in jail at $100 or more per day. That's a taxpayer burden that they could really care less about. They'll argue to the death how expensive it is to have a guy supervised in the community for $5 per day, but they won't say a thing about the defendants that they leave in the jail.

So it's no surprise that the Sheriffs said "no" to the bondsmen. It would have just been too weird to care about public safety, a fair and efficient justice system, safe jails, and the taxpayers, and then endorse a group that doesn't seem interested in any of those things.  

Friday, July 4, 2014

Bail on the Fourth of July

Well, here it is -- the Fourth of July -- but before I make like Joe Dirt and "keep on keepin' on" by crankin' up some Free Bird and lighting some Black Cats and Nipsy Daisers (with and without the scooter stick), I want to highlight a part of the American history of bail that I think we tend to forget.

America borrowed most its bail laws and practices from England, but at the time of the Revolution one thing that the Colonies definitely did not like about English bail law was how it gave people a right to bail but then simultaneously allowed persons of high authority (like the Crown) the discretion to deny it in any particular case. In fact, the Colonies disliked this discretion to deny bail so much that when they crafted their bail statutes and constitutional bail provisions, they typically articulated broad, unfettered rights to bail for all except those charged with a few (typically capital) cases. Pennsylvania's bail provision, which became the model for virtually the whole country thereafter, articulated a right to bail for all persons except in capital cases "where [the] proof is evident or the presumption great," adding a requirement to consider the evidence even in capital cases.

Both in England and America at the time of the Revolution, if you were bailable, you were supposed to be released. Bail equaled release, and, according to Blackstone, people who were deemed bailable during the Colonial period were almost all released. This was due to how we managed bail at that time, which involved using what we would now call "unsecured bonds" administered primarily through a personal surety system. Indeed, if you read about it, you quickly see that our use of money at bail in Colonial America was vastly different to how it is now. For starters, nobody was allowed to profit from bail. There were no bail bondsmen and no insurance companies, and none of the seediness that tends to follow those groups around. Moreover, if you were a defendant, you couldn't even promise to pay back a surety who took responsibility for you before your trial (i.e., indemnification was not allowed). The personal sureties' responsibility to make sure defendants returned to court was an important one, and the courts rightfully felt that promising to pay those sureties back in the event of a default took away any incentive for them to fulfill their great duty. Finally, the financial conditions -- the amounts of money actually tied to court appearance -- were due and payable only if defendants didn't show up for trial. Nobody had to pay anything up front to get out of jail. Nobody had to come up with fees or collateral for bondsmen. And virtually every bailable defendant was released pretrial. In short, everything worked pretty good.

Think about that on a day like today, when we celebrate the freedom given to us as our birthright. As we celebrate that freedom, remember that we do so not only in the sense of moving away from the "repeated injuries and usurpations" of a tyrannical government. We also celebrate the expanded rights and liberties created in the wake of our separation, which should inspire us, once again, to make whatever changes are necessary to administer bail so that pretrial liberty truly is the norm.