The Issues

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The following issues identified below are just a few of the key topics being discussed around the country in regards to criminal justice reform.

CRIMINAL JUSTICE BASICS

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BAIL AND HOW IT WORKS

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Bail are the terms imposed upon a person that such person must meet in order to be released from jail pending trial. This may involve setting a financial condition (an amount of bail) in addition to setting non-financial conditions (for example, turn in your passport). Bail bond agents typically have a very large interest in criminal justice reform as well.

When a person is arrested, bail will be set for that person by a judge. In many cases, bail is set by a fixed bail schedule. Terms of bail may include non-financial or financial terms. When no financial bail is set upon a person, the bail is called a recognizance release, which is also known as an OR (own recognizance) bond or a PR (personal recognizance bond). If a financial condition is ordered, the person.

EFFECTIVENESS AND COST

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Two important benefits of surety bail are its effectiveness and the fact that it operates at no cost to the counties and communities it serves. In fact, the surety bail industry is responsible for guaranteeing to the courts over $16 Billion in liability along with the management and supervision of over 2,000,000 defendants released each year.

There have been a multitude of academic, government and private studies done on the topic of pretrial release. Each and every study done has shown similar results. When it comes to guaranteeing appearance at court, surety bail outperforms every form of public sector pretrial release and own recognizance release as well. Check out our resource library to see many of these studies.

Beyond its effectiveness, one of the most compelling aspects of surety bail is that it not only lacks direct costs to local governments but because it helps mitigate costs to the system when defendants fail to appear. In fact, in rare cases where defendants don’t show up for court, because their release was financially guaranteed through a surety bond, the courts and communities are compensated for the full amount of the bond. Additionally, bail agents pay premium taxes to the state/county for each bond they write. So by providing a $0 operational cost benefit to the community, along with a positive cash flow potential through premium taxes, licensing fees and forfeiture payments, surety bail is one of the smartest and most cost effective tools for counties to utilize in their criminal justice systems.

Another way to look at the cost savings that surety bail provides to a community is by looking at the costs of the alternative methods of release. In 2013, Dr. Robert Morris of the University of Texas at Dallas conducted a study of ALL pretrial releases in Dallas, Texas over a year period. In his analysis he determined that when a defendant missed a court date, that there was a cost to the county for all the resources that were put in place for that case that now have gone to waste. That cost was determined to be $1,775 per defendant each time they failed to appear. Based on that conclusion and based on the failure to appear rates calculated in the study, Dr. Morris found that the surety bail industry saved Dallas County over $11 million by getting defendants to court.

SUPERVISION AND MONITORING

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If the financial incentives and safety net provided by surety bail is to be replaced with state-based supervision, there are several important considerations to keep in mind. The first is the cost of such systems. The District of Columbia for example spends $60 million annually on running their system. In addition, it is important to realize that someone must pay for the supervision and monitoring services if the defendant is unable to pay.

Second, is effectiveness. Do such programs work better than a financial condition of bail? If you click through our resources tab, what you will discover is that surety bail is the most effective and cost effective form of release. It reduced fugitive rates, and it substantially decreases the amount of time that fugitives are at large. Does that mean everyone should be on a financial condition of bail—of course not.
Third, government programs that supervise defendants, the vast majority of which are run not by law enforcement, lack the power to arrest or threaten to arrest the defendant if the defendant fails to appear. In addition, there is no third-party who has co-signed the bond like in the vast majority of surety bonds. Thus, surety bonds offer back-end accountability that supervision does not. Monitoring someone and supervising them is great, until they violate. The question then becomes, how do we respond to that, and in the case of government supervision the file gets shuffled over to the police to deal with that defendant whereas a surety bail agent will get that person back in court or suffer a financial penalty.

Finally, supervision programs may unnecessarily ensnare defendants in conditions that they cannot meet. A drug addict cannot simply quit cold turkey because they were ordered to do so. If a government program monitors them and they violate their bond condition of sobriety, they may then face additional charges.

RISK ASSESSMENTS

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Risk assessments are typically comprised of a handful or more factors that are then assigned weights to come up with a risk score.  Assessments, if validated, are only validated to predict risk, but are not validated to set bail and conditions of release.  Thus, a risk assessment is but one more piece of information a judge can use to set the bail and conditions of release.  Most risk assessments are intuitive—they are based on prior criminality and failures to appear.

Risk assessments, when proper safeguards are not involved, may have a negative impact on the rights of defendants.  For more on this topic, go here.

There is also the question of whether interview of defendants are necessary for the assessments to be successful, and there are several assessments that do not rely on interviews.  Conducting interviews and putting together reports can be resource intensive.
In addition, there has been some particularly harsh criticism by the Attorney General of the United States and others for the use of demographic factors in these assessments that then institutionalize discrimination against minority populations.  

Further, to the extent risk assessments ignore required consideration of statutory factors, they may not be employed as the only or sole mechanism to decide release.

Finally, when proper safeguards are in place, a risk assessment can give judges one more view of a defendant that they may not have had and aide in informing a bail decision.

BOND SCHEDULES

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Bond Schedules are predetermined bail amounts that can be used to quickly and effectively set a bail amount for a defendant when judge is not present.  The bail schedules are typically developed by the judiciary (a panel of judges) in a county and is reviewed and revised on an annual or other predetermined time frame.  The purpose for the creation of bail schedules was to allow for release on nights and weekends when courts were not in session and also to facilitate and speed up the release process. 

There have been several arguments made against bail schedules as being arbitrary money schemes and unconstitutional, however we believe these arguments to be without merit.  Bond schedules are a legal extension of the judiciary, and we believe when set appropriately that their existence allows for the timely and expedited release of defendants.  Individual consideration and bail setting by judges, however, is the norm in many jurisdictions. 

There are resource realities that court systems face across this country, and ABC supports the use of bail schedules were necessary and judges setting bail in all cases as well.

INDUSTRY REGULATION

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A well-regulated bail system is essential to making sure that surety bail can continue to be a critical partner in the surety bail system.  Because bail agents are conferred the power to arrest, it is essential that there be in place a system of rules and regulations that may accomplish that purpose.  Often, however, we see some regulations that are for regulations’ sake rather than to protect the public.  We strive nationally to help policy-makers find that balance.

Toward that end, the American Bail Coalition has called for the regulation of bail recovery agents when they are not otherwise licensed as bail agents.  This is an important loophole that needs to be fixed in numerous states, and ABC is supporting legislation to fix this loophole in several states.  On our website, you’ll find a policy statement in favor of such legislation.

Finally, the laws and regulations surrounding the process of posting bail, forfeiting bail, and surrendering fugitives can be improved in many states and localities.  When we all work together we can reduce the resource impact of the process of arrest, release and return to court on states, local governments, law enforcement, bail agents, and the consumers who use the surety bail system and all other forms of releases.

JAIL OVERCROWDING

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The Reality: Surety bail is the most cost effective, least restrictive,  and most reliable form of pretrial release available.  The surety industry gives the ability to families and defendants who can’t afford the full amount of bail to get out for a small percentage of that cost.

Jail overcrowding has been a hot topic in the criminal justice community for many years.  Much of the blame for this issue has been placed on the surety bail industry and financial conditions of bail.

Unfortunately, this claim ignores the fact that surety bail accounts for a large percentage of releases that either would not occur without some security or for which costly government programs would have to monitor and supervise the defendants.  In fact, there have been many academic studies done that prove the worth of surety bail.  Check out our resource library to see many of these studies.

Additionally, ABC believes that one can’t simply blame another for causing jail overcrowding without first understanding who is in jail in the first place.

Understanding who is being held and why they are being held along with the requirements of them being held are extremely important aspects to know in order to identify the problem and even more importantly solve it.  Once again, there have been several studies that have concluded that the jails are crowded not because of surety bail but rather because many of the individuals being held are not eligible for bail and are being held due to other legal barriers that have nothing to do with financial conditions of bail.  Click here to visit our resource section to view many of these important studies.

Lastly, we believe that surety bail is not the cause of jail overcrowding but rather a smart and effective solution to solving it.  In order to best manage jail populations, counties need a responsible and proven release mechanism as part of the mix that will truly guarantee appearance.  Counties need a solution that is not just about assessing risk, but more importantly about managing risk out in the community.  We believe that surety bail is the most effective and time proven method for solving this problem.