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ERIC HOLDER VS. THE BAIL BOND INDUSTRY

Posted by Tim Bryce on February 28, 2012

(Click for AUDIO VERSION)

Sometimes we are cognizant of the changes occurring around us, such as the president’s controversial health care bill which was extensively covered by the media. Just about every adult in this country has heard of it; they may not understand it, but they are aware of it. Most of the changes affecting us though are not visible to the naked eye, yet they can have as profound effect on us as “Obamacare.” Such is Attorney General Eric Holder’s full court press against the Bail Bond Industry representing a premeditated attempt to expand government and suppress the free enterprise system. Like my recent article explaining how new government rules inhibit health care providers from tending to the business of patient care, this legislation will undeniably affect all of us. Let me explain.

The general public has long understood the concept of posting bail in order to be released from jail prior to trial. It is even referenced in the Eighth Amendment of the Bill of Rights whereby excessive bail is prohibited. The purpose of bail is two-fold: it assures the accused returns for trial, and he/she will behave properly and not pose a threat to the community while awaiting trial. The accused is either remanned into police custody or allowed to post bail as prescribed by a judge. Bondsmen, who operate independently from the government, offer bonds for posting. This is typically arranged through a family member, a close friend, or perhaps the accused’s employer, and a bond can normally be obtained at a percentage rate of the bail, such as 10%. Bail bondsmen are seasoned veterans who possess a good judge of character. They carefully analyze the accused, the person posting the security, and the risks involved with freeing the defendant. To the bondsman, this is a relatively straight-forward business transaction; he will obviously not post bail if he believes the accused to be a flight risk or will cause trouble. Few people realize the bail bond industry is heavily regulated and must comply to numerous laws, rules, and regulations.

What the public doesn’t understand is the pretrial release program which is advocated by the Attorney General. This is a program which has been evolving over the last three decades and seeks to relieve overcrowded jails by implementing a government implemented program to interview accused prisoners, determine those who are not a threat to their victims and community, and release them pending trial. Although this may sound fine on the surface for misdemeanor offenders, it also applies to certain felony cases, such as those accused of child pornography, theft, battery, and dozens of other crimes. Crimes of major violence or repeat offenders are normally not eligible to be considered under this program. If implemented in full, the pretrial programs will inevitably eliminate the need for bail bondsmen completely.

“Across the country, nearly two thirds of all inmates who crowd our county jails, at an annual cost of roughly nine billion taxpayer dollars, are defendants awaiting trial. Two thirds of all inmates are awaiting trial. Now, many of these individuals are nonviolent, non-felony offenders, charged with crimes ranging from petty theft to public drug use, and a disproportional number of them are poor.”
“Now, the reality is, it doesn’t have to be this way. Almost all of these individuals could be released and supervised in their communities and allowed to pursue or maintain employment, and participate in educational opportunities and their normal family lives, without any risk of endangering their fellow citizens or fleeing from justice.”

– Eric H. Holder, Jr.
Attorney General, US Department of Justice
National Symposium on Pretrial Justice
May 31, 2011

The impetus behind pretrial programs is overcrowded jails. Proponents of the program claim the current system costs $9 billion per year to operate. Their math is a bit fuzzy as they cannot demonstrate how the pretrial system will lower this number, nor do they take into consideration how bonded defendants are saving money for the taxpayers. In reality, studies show 12% of those defendants released through a pretrial program do not return for their trial appearance and, consequently, a bench warrant is issued to apprehend them. When the accused fails to appear at trial, court dates have to be rescheduled, which incurs costs associated with judges, lawyers and other courtroom personnel, not to mention law enforcement costs to apprehend the defendant. Further, there is the risk of the accused committing another crime thereby incurring even more costs. Currently, the rate ranges from 9% to 16%, with 12% committing violent offenses. Such variables are conveniently overlooked by the pretrial proponents. In contrast, under the bail bond system there are significantly less defendants failing to appear at trial and committing additional crimes. Taxpayers should question the wisdom of creating a program that actually increases crime as opposed to reducing it.

In our court system today there appears to be an emphasis on releasing offenders as opposed to imprisoning them to await trial, simply for the sake of saving a buck. The courts are littered with cases of defendants being released on their own recognizance (ROR) who have long rap sheets, facing serious charges such as battery, or both. Some ROR cases are unsupervised, including those involving felonies, and others requiring supervision. The question though is, who is to perform the supervision? There are also instances of ROR supervised release of defendants who live in another county. Again, who is to supervise them? As you study ROR cases, it becomes rather unsettling to discover it is easier to get out of jail than to get into it.

Let’s stop and consider why people do not post bail and allow a family member or friend to remain in jail. In many cases, the accused is unable to abide by any semblance of rules and regulations. More than anything, this is an indictment of our society’s deteriorating parental skills which seems to have trouble teaching responsibility, accountability, and discipline. Instead, a family would rather have their “deadbeat” left in jail where they might learn a lesson or two as opposed to being released on bail.

Whereas the rules and regulations for the bail bond industry have long been established, the policies and procedures for pretrial programs are still evolving. Some are fine, others lack any form of organization and enforcement. For example, the defendant should be properly interviewed prior to making a determination for their release. Quite often this is overlooked. Although there are standards to implement such programs, many are not accredited which means processing can be sloppy and inconsistent, the very stereotype of a government bureaucracy running amok. To illustrate, in Florida only five counties (out of 67) are accredited for Pretrial services (Source: Florida Accreditation). Obviously, this means people are being released who may potentially cause problems either by not appearing at trial, or causing other offenses.

Urban areas with substantial budgets are more inclined to establish a pretrial program than a rural area who cannot afford creating additional government overhead. Even the larger metropolitan areas are having a hard time justifying it during these troubled economic times where government budgets are being slashed. The point is, it is extremely difficult, if not impossible, to realize state-wide uniformity in pretrial programs. Whereas one county may offer a credible program, a neighboring county may not.

Pretrial advocates are moving quickly on this matter. If they have their way, bail bondsmen may go the way of the Dodo bird in as little as three years. So it becomes a matter of who the public believes can more effectively manage pretrial offenders, the government or the bail bond industry. Whereas one-side casts aspersions against bail bondsmen as more interested in a buck as opposed to the accused, the other side questions the ability of government to implement an important program to the same level of success as the bail bondsmen.

The real issue is which system can most effectively protect the public, assure defendants will make their court appearances, help reduce jail population, and do so all at reasonable costs. So far, bail bondmen have a better track record, particularly in the area of costs which are assumed by the bail bondsmen as opposed to the taxpayer. As to the pretrial system, it is still too new, still too experimental, still unproven, and will likely result in another government bureaucracy at considerable expense. Taxpayers should question the logic of throwing the baby out with the bath water.

Is there room for compromise? Certainly, both programs have advantages and can peacefully co-exist but the pretrial zealots seem bent on eliminating the bail bond industry and county governments are being asked to choose sides as opposed to finding ways to work together.

“There is plenty of room for the two forms of release to coexist.”
– Sarasota Herald-Tribune
“Sensible, cost-effective justice”
February 16, 2012

How this issue has avoided the public spotlight is insidious. While the public is distracted, the government quietly tries to expand and push private enterprises out of the way. As obscure as the bail bond industry is, it makes you wonder what else they are trying to commandeer. Fortunately, this is an election year, making it an ideal time to ask candidates their position on this subject, particularly those running for sheriff. Bottom-line, do they believe government should expand at taxpayer expense or continue to utilize bail bondsmen, a heavily regulated industry with a proven track record. Your court date is November 6th, Election Day. Be there.

Keep the Faith!

Note: All trademarks both marked and unmarked belong to their respective companies.

Tim Bryce is a writer and the Managing Director of M. Bryce & Associates (MBA) of Palm Harbor, Florida and has over 30 years of experience in the management consulting field. He can be reached at timb001@phmainstreet.com

For Tim’s columns, see:
http://www.phmainstreet.com/timbryce.htm

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Copyright © 2012 by Tim Bryce. All rights reserved.

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One Response to “ERIC HOLDER VS. THE BAIL BOND INDUSTRY”

  1. Tim Bryce said

    A C.K. of Oklahoma City, Oklahoma wrote…

    “FABULOUS ARTICLE!!

    I am a bondsman in Oklahoma City – Oklahoma County, we have serious problems here, the first being the president of the Oklahoma Bondsmans Association. Interestingly enough I received this article in an email that he forwarded from PBUS. Dudley Goolsby, long time president of the Oklahoma Bondsman Assocition argues with the local bondsmen about this very issue. He claims that pre trial release isn’t killing off the bondsman and that it is the economy and other various factors, like reduced crime rate. Many of us are unsure what his motivation is, possibly just ignorance, who knows. A group of us even tried to ban together and fight the program, but it has been almost impossible.

    I wonder what would happen if every bondsman in the country ran an ad against pretrial release on the same day. Maybe the public would find out the truth. Again, the article was great, I do think the failure to appear rate is low. the average we see here is around 50%, but fabulous.

    BTW, here is another site to help raise public awareneness: http://www.judicialwelfare.com/

    An R.J. of Fern Park, Florida wrote…

    “Tim, I liked this great article and it’s a shame so may Law Enforcement people and county commissioners can’t see the diservice they are doing to the honest hard working people just to be able to give more get out of jail cards. Common sense says give the criminals a chance once, some maybe twice and if it’s been a long time since last arrest, maybe give them a third chance, but when you give them chances over and over and at taxpayer expense it just makes no sense! It appears Law Enforcement and County Commissioners have lost sight of what their jobs are and they don’t seem to know it’s honest hard working people who pay to keep them employed not criminals! You would think that if they are having to cut services, cut hours and layoff workers, they shouldn’t have the money for pre-trial release for the very same criminals over and over! And anything that our gun running Attorney is pushing and or standing behind should be suspect! I also cannot understand how taxpayers are not up in arms demanding that criminals be kept in jail and pay their own way out of jail. Pre-trial release was never intended to let anyone out of jail for free, time after time. Pre-trial release has become a joke. Bail Bondsmen do the whole job, not half the job like pre-trial does. Bondsmen bond them out, instruct and advise them, keep and eye on them, give them a helping hand, help law enforcement when they come to us with questions, and if they miss court, bondsmen go find them, bring them back to jail and it costs the taxpayer not a single dime oposed to pre-trial release who does nothing when they are released and then miss court, except say the sheriff has another one to find at taxpayer expense! Why would Law Enforcement and County Commissioners want more pre-trial release which costs them a lot more money than having bondsmen do the full job and cost them nothing? I’m waiting for an answer.”

    A P.W. of Elgin, Illinois wrote…

    “Thank you for the article! I wish more people understood the changes that were taking place in the Industry.”

    An S.C. of Texas wrote…

    “Definitely interesting how government continues to push its way into the private sector. Perhaps that is why we are going broke?”

    An M.P. of Brighton, Colorado wrote…

    “Good work. Now let’s see if any of the people we elected/or will elect pay attention.”

    Anonymous of Florida wrote…

    “Upon Sheriff Bob White disbanding his taxpayer Pretrial Program in Pasco during March 2009, he took heat from many…..here we sit today 3yrs later with the fact that everything the Pre-Trial Industry claimed would happen, DID NOT happen. The Judges susbsequently took the stance of ramping up Judicial ROR and placing a Bail Schedule on the Pasco AND Pinellas Jails that list ROR as the Bail Amount at initial booking, thus thousands of defendants in the Circuit are now simply booked, photographed and than RELEASED ROR….the Judges have delegated the judicial Bail ruling to a Jailer thru a “administrative Order” aka Bail Schedule….its now a fact that all DUI’s and criminal traffic cases 3rd degree felony or Misdemeanor have been released since 10/2009 ROR along with most other misdemenant and many Felony cases……….I know of one bailbond office which has not posted a criminal traffic Bond in almost 3 YEARS due to automated ROR.

    As Sheriff Nocco took office last April he than questioned the Judiciary as well as why they were delegating releases as outlined above so he performed a STUDY on the Pasco Jail last Spring thru Fall of FTA RATES for ROR vs. Bail…….the results: 28% FTA on ROR vs. 3% FTA on Bail thru Bondsman.

    The Sheriff had his Jail Commanders contact the Chief Judge to advise him of the above since public information requests for this data were being made. The Chief Judges Response Verbatim: ‘anyone wishing to obtain a copy of this report is NOT a friend of the Court’.

    Your take away from this is that Pasco has had 3yrs of SUCCESS w/out a PTR Program. You now have FTA Rates that historically have been kept under lock and Key in this Circuit, the same are NOT unique when comparing them to ANY County Jail because Jail and Bail is just that anywhere period, and you have a system of ROR in this Circuit post PTR Program disbandment that by Stats and Date does NOT work. You also have a Jail that has not changed its population avgs post PTR Program. Lastly, almost ALL domestic battery cases are ROR’d in this Circuit. The Sheriff of Pasco will tell you that inmates “know the system” present day to the point that they actually purposely sit in jail overnite knowing an ROR awaits them the next day if the Bail Schedule does not ROR them at booking in the first Place…..thus crowding jails overnite because of the ROR system awaiting them the next day.

    The Bail Industry proposed Legislation in Florida in 2010 and 2011 to limit taxpayer releases thru PTR Programs to indigency inmates not currently facing other charges, not currently on Probation and with no history of FTA……..the same failed late in theses sessions…….Pasco County Commissioners Ted Schrader, Jack Mariano and Michael Cox wrote letters on BOCC letterhead to the Florida Senate outlining Pasco’s success with disbanding the PTR Program along with listing County savings of almost $400k by disbanding the program AND along with claims of added Deputies back to fighting crime, the letters also asked the Florida Legislators to SUPPORT the Bills.

    None of this seems to get printed in the papers. It is a fact that the PTR lovers wish to discredit Pasco from proving their program as inept by stating ‘Pasco can not be looked at as a comparison because Pasco does not have a major airport and as such Pasco is not a large metro area’. I believe Pasco has 500,000 residents Tim, so is 1/2 million people a ‘small county’?”

    A G.L. of Tampa, Florida wrote…

    “This was really an eye opener. Guess who is taking over? You really put in the time and effort on this one!”

    An S.S. of Lillington, North Carolina wrote…

    “Enjoyed your article. The pre-trial system squanders tax dollars buy putting criminals on the street. Remember, the private Bail industry DOES NOT COST THE TAX PAYERS A DIME! In fact it generates money for NC’s school system as well. BAIL BONDSMAN SAVE MILLIONS in law enforcement salaries, not to mention the COST OF GAS alone that would be spent from tax dollars to locate and arrest these offenders when we do our part all at NO EXPENSE TO YOU. Warrants that could otherwise go unserved with no financial benefit to your communities!”

    A J.S. of Arizona wrote…

    “I have not heard about this, thanks.”

    An A.M. of Indiana wrote…

    “Enjoyed your Bail Bond reflections. I have been writting Surety in Indiana for twenty one years. Indianapolis, Fort Wayne and South Bend all do OR’s or cash bonds and have the higest FTA ratings in the state. The taxpayers have no idea. The court judges and clerks bend to the political winds and criiminals run free. Illegal’s are a whole other story. Obama is building his base of liberal wannabe citizens for their legal family votes. My company had to pay 250K for court forfeitures and FTA cash bonds get off free. Bailbondsman conspire with judges to avoid the forfeiture system by changing venue (against the state law) allowing them to write high risk bonds without any financial risk. It’s a real mess. In Indiana, the Bail Industry is governed by a very big paper tiger, its Department of Insurance. Totally gutless and ineffective. They are also a part of the problem. Ill be interested if you get any feedback on today’s program.”

    A J.P. of Toronto, Ontario wrote…

    “In Canada it is a criminal offence to accept a fee to act as a surety for an accused person. If a person who has made bail does not meet the conditions of bail, the police go after him or her at public expense. It is illegal, here, for any person to make money by putting up bail money for an accused. Essentially, the deeper value this is based on is that bail is a part of the justice system that is not an appropriate area for free enterprise or profit. In the same way, running a private jail or prison or other place of incarceration for purposes of profit is not permitted. Again, this is seen as a part of the justice system where private enterprise has no business to be, the opportunities for corruption being too great. Additionally, it is not thought right or proper that private individuals, seeking to protect or recover their own bail money, should have any authority to chase after accused persons – that is what police are for.

    When a private person has posted bail for an accused, that is, acts as a ‘surety’ for the accused, to use the legal term, and when the accused does not meet the conditions of bail, including flight by the accused, the person who put up the bail money may or may not lose it. A court hearing is held to decide if the person or persons who put up bail money exercised due dilligence within reason, or not.

    There is an American TV program about a bail bond family, with episodes in which the bail bondsman goes after bail jumpers – special vehicles, drawn guns, making an arrest – it all looks so ‘wild west’ to Canadian eyes, at least to these Canadian eyes. Such a thing does not happen here.

    The other thing that often strikes Canadians as odd is that the criminal law seems to differ from one part of your country to another! One can be sentenced to die in one State, for example, but not in another! In Canada, the Criminal Law is the same over the entire nation, although the individual provinces are responsible for its enforcement.

    My own view, not shared by all Canadians of course, is that non-violent offenders should not be serving time in jails or prisons so long as the nature of the charges does not reasonably suggest risk to the public or other individuals. Per capita, the United States is reported to have more of its own people in jails and prisons than any other modern, developed, democratic country. Only those who may reasonably be seen as likely to harm others or otherwise put the public at physical risk in some way should be locked up.

    The fraudster and ponzi scheme operator, Bernie Madoff, is a good example of what not to do. Such a mind should not rot in jail at public expense. Rather, he should be compelled to work for the Treasury Department, at minimum wage and under close supervision, recovering money from deadbeat tax evaders, or performing other high-value services for the government at minimum wage, say ten dollars an hour. Of course, all his assets should be taken and returned so far as possible to those he defrauded, and he might well be able to help with that, too.

    Again, a person convicted of possession of marijuana for personal use, or even for the use of others, should probably not be rotting in jail. To take another example, the way the California justice system has dealt with Lindsay Lohan in her theft conviction and DUI offences, making actually sending her to jail the very last sentence of ultimate resort and, instead, working hard to make her pay her dues to society on some form or other of probation strikes me as a better way.

    At present. the Harper Government is in the process of passing legislation requiring minimum sentences for conviction of a long list of crimes, taking all discretion away from judges and the courts. There is enormous controversy here surrounding this change, and the Provinces, responsible for enforcement, are complaining about the enormous additional expense of building more jails and staffing them and, in many cases, all to incarcerate non-violent offenders who pose no risk to the public to begin with. Again and again what the present government is hearing is: ‘Do not go down this failed American road.’ This is coming from American officials, from the Attorneys General of our Provinces and from the judges themselves. Still, Harper is an ideological conservative and since he has the power, now, this change will probably happen. Already, one judge has refused to assign a minimum sentence on the basis that to do so is contrary to the Charter of Rights in our Constitution, coming under the general heading of an otherwise prohibited cruel and unusual punishment.

    Sounding like an American Republican, Harper has responded that the job of the courts is to enforce the law, and the job of the Government is to make the law, and that in Canada criminal law is made by the Federal Government. Whether this change will ultimately ‘stick’ probably depends less on the courts than on the results of the next federal election about four years from now. Meanwhile, there may be increasing friction on this issue as between the judiciary and the elected politicians.”

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