Private Surety Bail: Advocacy and Legislative Initiatives
- April 21, 2009
- by Collateral Staff
Our country is facing an unprecedented economic crisis that may take years to recover from. State and local governments are faced with drastically cutting budgets and raising fees for services while passing the costs on to already financially-strapped citizens. On top of the financial crisis, states across the country are facing a growing crime rate which has become exacerbated by taxpayer-funded pretrial release programs that routinely release violent and repeat offenders back into our communities.
According to a nationwide study conducted by the Bureau of Justice Assistance, there were over 300 pretrial release programs operating in the U.S. as of 2001 - eight years later, others have been established. Over the past 20 years, such programs have grown into large, expensive government agencies that release defendants without secured bail. In an effort to reduce jail overcrowding, pretrial release programs were originally designed to release non-violent, first-time offenders and indigent defendants who were unable to post a surety bond. Today, however, defendants charged with serious offenses who have lengthy criminal histories, failures to appear and violations of probation are released using our tax dollars. Pretrial release programs are also charged with providing an objective assessment of a defendant's criminal history and other personal data in order for the court to make an informed release decision.
Pretrial release programs have no financial responsibility for defendants who fail to appear or become fugitives under the program, nor do they attempt to apprehend them. Many pretrial release programs are governed by an administrative order that allows jail officials to release defendants before ever seeing a Judge. The level of supervision and interaction with a defendant released under a taxpayer-funded pretrial release program is starkly different from that of someone released under a private surety bond. Bail agents track and monitor defendants to ensure they appear in court and receive their sentences. Bail agents and the insurance company backing the bonds are monetarily responsible for defendants released on private surety bail. If a defendant flees, the bail agent must return the defendant to jail or pay the court - often large sums of money. Bail agents not only have a financial interest in making sure a defendant appears in court, but they also have a fiduciary commitment to the courts, taxpayers and victims of crime.
Due to lobbying by the bail bond industry, Florida and Texas approved new legislation called the Citizens' Right-to-Know Act that requires more transparency and accountability of taxpayer-funded pretrial release programs. The legislation requires programs to prepare a weekly register displaying key information on defendants released under the program and which must be readily accessible to the public. In Florida, a systematic analysis of registry information is being conducted statewide. In reviewing registry information in Orange County, Florida, it was revealed that defendants charged with serious and repeat offenses, as well as those with prior felony and violent arrests, were routinely being released without financially secured means. Individuals arrested for possession (and armed possession) of heroin, cocaine, marijuana and cannabis, carrying/possessing a concealed firearm, grand theft third degree, theft, burglary, battery, prostitution, DUI and numerous and repeat driving offenses such as no valid driver's license or driving with license suspended/revoked, are released through the pretrial release program without ever seeing a Judge. These are not individuals charged with relatively minor offenses of who don't pose a threat to public safety. Many of the released defendants were able to post bond in the past for prior offenses, thus negating the argument that they can't afford monetary release. The pretrial release program in Orange County has publicly stated that most of the defendants released under the program are able to post a surety bond; and the jail is under population. This is a blatant example of using tax dollars to compete with private enterprise.
New legislative efforts, supported by the National Taxpayer's Union, the American Legislative Exchange Council and the bail bond industry, are underway to implement the Citizens' Right-to-Know legislation in other states. This valuable legislative tool will afford the opportunity to educate policy makers providing funding to pretrial release programs of the true and accurate nature of the types of defendants being released using taxpayer dollars. In addition, current non-bail states such as Oregon are considering legislation to reinstitute private surety bail due to chronic jail overcrowding, high crime rates, high recidivism rates and failures to appear. It is an unprecedented achievement for the private surety bail industry.
Two national organizations, the National Association of Pretrial Services Agencies and the Pretrial Justice Institute advocate for the proliferation of taxpayer-funded pretrial release programs. NAPSA consists primarily of pretrial practitioners and its national standards on pretrial release clearly states that, "compensated sureties should be abolished." The PJI states that it advocates throughout the country to increase fairness and access to justice and that their goals of advocacy are three-fold: reduce the number of people who are held before trial when they pose no threat to the community and will return for court appearances; ensure that dangerous people are held before trial, keeping communities safe; and increase the number of people who are appropriately diverted from the criminal justice system to services such as mental health or substance abuse treatment. Of the pretrial release programs analyzed, it is clear that dangerous people are not being held before trial but are being released into our communities.
In these difficult economic times of cutting budgets for schools, healthcare, law enforcement and basic government services, more tax dollars should not be allocated to do what the private industry does for free and with greater success. Emptying jails as fast as possible to save money is bad public policy and creating an "in-and-out" nature in a jail sends a message to criminals that accountability is not very high. Re-arrest rates and failure to appear rates are higher for defendants released on unsecured bail. The economic cost to taxpayers for failure to appear is substantial. Only private surety bail has the lowest failure to appear and fugitive rates.
State Constitutions and statutes state that every person charged with a crime should be entitled to pretrial release on reasonable conditions. Some state statutes further state that there should be a presumption in favor of release on non-monetary conditions for any person granted pretrial release. However, many pretrial release programs are no longer non-monetary and charge fees to defendants for supervision and/or drug testing fees. And the level of "supervision" is often relegated to a weekly or monthly telephone call and random urinalysis. If a defendant violates any condition of release under a pretrial release program, more tax dollars are simply spent to have them re-arrested and held on a no-bond status, thus increasing the jail population. Bail agents invest and instill financial incentives for defendants by integrating family and friends as guarantors of a bond to ensure they appear in court and receive their sentences.
Private surety bail affords the opportunity to reduce jail overcrowding, increase public safety and improve compliance of those defendants released into the community pending case disposition. Any release method should always take into account the best use of taxpayer dollars and public safety. The private bail industry continually provides education regarding the public safety benefits it provides. The industry will continue to advocate for less use of taxpayer-funded release programs that historically have higher failure to appear rates and fugitive rates.
Elected officials, policy makers and the community need to have an accurate and clear understanding of how the private bail industry positively affects the criminal justice system . . . or our critics may find themselves fully responsible for those charged with serious crimes and released back into our communities. Public policy affects public safety.
Debbie Jallad, a public safety advocate and nationally recognized criminal justice expert, has been actively involved in developing industry standards for bail and lobbying for reform. She is president of Accredited Surety & Casualty Company, Inc. - one of the nation's oldest and most respected privately held insurance companies involved in the bail industry.
