America's Bail System is being Scapegoated

August 25, 2016


This is in response to the article, "America’s bail system is a war on the poor. Let’s get rid of it" by Rachel Marshall.


Rachel believes the concept of bail is simple. There is a monetary incentive. Which is somewhat true. But the monetary incentive is not simple. It’s actually quite complex.


So complex in fact that Judges many times do not set the necessary amount or type. Which brings me to the example Rachel gave about Jane. If everything the Attorney says is true about Jane then the rules of criminal procedure would determine the bond amount set was excessive. If Jane did not have any criminal history, no fail to appears, no drug abuse, strong community ties, her income is $20000 a year and the weight of the evidence is word of mouth then a reasonable bond for those charges although serious should be around $5000 or $20000.


Now does the Court want $5000 or $20000 from the defendant? No, it does not. The Court does not even want $500 or $2000 from the defendant. The Court wants to safeguard the adjudication process. If the defendant is released unsecured and fails to appear there is a great probability they will not got arrested for years and if that happens the District Attorney will have a difficult time prosecuting the case.


The Court sets secured bonds because it believes the bail company will do everything possible to not have to pay the $5000 or $20000. Which is true, bail companies will do their best to create leverage that will assure a defendant appears in Court. This is where things become extremely complicated.


Bail bondsmen require a responsible relative or friend of the defendant that they can communicate with if the defendant fails to appear. Determining who the right person or persons are requires skillful judgement. Knowing what questions to ask, analyzing how the questions are being answered and determining who best will make sure the defendant is responsible requires extreme care and much attention to detail. Bail bondsmen who have been in business for a long time understand boyfriends and girlfriends are not the best people to work with because love or fear will supersede being responsible. Friends that are flaky, that will likely not communicate with the bail company when the person misses Court, is not happening either. Immediate family are usually the best at understanding the stakes.


They know they are agreeing to pay the full bond if the person does not comply with the Court's order to appear. Rachel comments that the person who agrees to pay the other 90% is not probably able. Yes this is probably true but they also do not want to owe the 90%. Especially when they understand it is wasteful because the defendant will absolutely get arrested eventually.


Moreover this responsible person is or is not going to attest that the defendant should be released. In many cases the family will not want to be involved and not because they cannot pay but because they know the defendant will not be responsible. This is why an externality of the bail system is greater public safety.


Wherefore the example about Joan being a better scenario is simply not true. Having an ankle monitor that you can cutoff does not protect the community or assure Court appearance. Pretrial services does not attempt to surrender the defendant from wherever they may be hiding if they fail to appear. Nor does it save taxpayers $122 a day (example given: $142 to jail someone vs $20 GPS ) because these people being released through Pretrial Services would have likely posted bond. A well funded Pretrial Service agency is tax money wasted and it eliminates the personal, professional and third party accountability that bail brings at no cost to taxpayers. Studies show over supervision increases defendants being in jail and having probation-like services violates presumption of innocence.


The argument that the bail system is at war with the poor is absurd. In Jane's case she could have posted her bond for as little as $150 to $600 down (3% of the 10% is offered by majority of bond companies) and extremely low payments (often $20 to $100 monthly) that by law cannot bear interest. Perhaps if Joan makes more money she could have paid the full premium upfront but the bail safeguard is still there.


The bonds company is not going to pay the bond to the Court and expect to collect from the family. They will use all the information they have from the application and background investigation to surrender the defendant back into custody. This is why surety bail works best.


The Bureau of Justice Statistics published a Special Report on pretrial release in November 2007 and said "Compared to release on recognizance, defendants on financial release were more likely to make all scheduled court appearances. Defendants released on an unsecured bond or as part of an emergency release were most likely to have a bench warrant issued because they failed to appear in court." In regards to recidivism the study said "Characteristics associated with a greater probability of being rearrested while on pretrial release included being under age 21, having a prior arrest record, having a prior felony conviction, being released on an unsecured bond, or being part of an emergency release to relieve jail crowding.” This study proves secured bail is the best at assuring a defendant's Court appearance and protecting the community.


Recently, The Department of Justice shared its concern about indigent persons right to equal protection of the laws under the bail system. But does this mean the answer is to eliminate the best proven means to assuring Court appearance and the safety of the community? Perhaps a better solution is to publicly fund secured bail for indigent defendants in non-violent crimes. If housing a non-violent defendant cost $100 a day then perhaps funding a one time nominal fee to a bail company is the answer.  


Furthermore that we realize drugs have won the war on drugs. That instead of Pretrial Services testing defendants constantly and then incarcerating them further we focus on innovative ways to treat addiction as a health crises.


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America's Bail System is being Scapegoated

August 25, 2016

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