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!
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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 firstname.lastname@example.org
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Copyright © 2012 by Tim Bryce. All rights reserved.