Of Bail and Bondsmen

In my favorite Robert DeNiro movie, Midnight Run, DeNiro plays a bounty hunter attempting to bring a bail jumper from New York to L.A. for trial.

Entertaining but fanciful in many aspects, the movie embodies popular conceptions about the bail system: get arrested, pay a bail bondsman to get out of jail, have the bondsman come after you if you skip out.

It sounds very efficient, maybe even fair. But Maryland's bail system serves neither efficiency nor fairness. It exists primarily to make profits for bail bondsmen.

The bail system involves two distinct components: the practice of requiring bail as a condition of release before trial, and the bail bonds industry. Since persons charged with crimes are presumed innocent, allowing them to be free pending trial is consistent with that presumption. Bail functions as an incentive for defendants who are set free to show up for trial. They put up something of value that they get back when they come to court.

But it's easy to see that requiring bail discriminates against those without cash or property to post as collateral. Liberty before trial depends on sufficient wealth to post bail. That is, or ought to be, offensive to American sensibilities.

So into that breach stepped the American genius for making profits. For a fee, usually a small percentage of the required bail, private companies will post a "bond," a written guarantee to pay the bail if the accused person fails to show up in court.

As the New York Times pointed out in a 2008 article, the United States and the Philippines are the only two countries that give private enterprise a central role in their pre-trial release systems. And the bail bonds system has been, according to the Times, condemned by the American Bar Association and the National District Attorneys Association, not to mention outlawed in four states. But it has a firm foothold in Maryland.

What do bondsmen accomplish? Well, they allow more people of lesser means to get out of jail. But while they lessen the inherent discrimination of the bail system, they do not eliminate it. If bondsmen won't take a bail, or if the accused cannot afford even a small fee, the accused still stays in jail. And bondsmen take money from people who can least afford it and can't get it back. Under a true bail system, bail is an incentive to show up for trial. Under the bail bonds system, bail becomes a penalty for being arrested.

Bondsman will claim that they bear the risk of defendants who don't appear for court and the cost of tracking them down. But in reality the bondsman's risk is low. If a defendant skips court, a judge will issue an order "forfeiting" the bail, which triggers the right of the local prosecutor to take the bondsman to court and enforce his promise to pay. But in Maryland bondsmen can have the forfeiture "stricken" when the defendant is arrested. It doesn't matter what he is arrested for or whether the case is no longer feasible thanks to the delay in the trial. As long as the defendant is returned to custody for any reason the bondsman is released from responsibility.

In Midnight Run, not only was DeNiro looking for the bail jumper but so was the FBI. A Maryland bondsman would have just let the FBI do their work, because unlike the premise of the movie, no 5-day deadline exists that would cause the bondsman to lose his money.

The bail bonds system, in theory, transfers from government to private industry the decision of risk and the burden of capture. I can imagine a time, say in the old West, when perhaps this made sense. In the absence of photos and fingerprints, not to mention social security numbers, and without a professional and ubiquitous law enforcement system, bondsman might really have performed a function that the state could not have done as well.

But not anymore. With technology, information systems, and modern police forces, bondsmen can just wait for police to find or happen upon their no-shows for them. And while bondsmen can get more poor people out of jail, they gouge them with non-refundable fees. It's still a system of greater liberty and justice for the well-to-do.

The Times article states, without providing evidence, that the bail bonds industry "is remarkably effective at what it does." The evidence, of course, is critical to that claim. But more fundamentally, what does the industry do? It decides that some persons are worthy risks for release. And makes a profit on its judgment.

The state is already supposed to decide that risk. It serves neither logic nor justice to have a bondsman make a second judgment for profit. Unfortunately, the state makes bail decisions inconsistently and badly, fueling the perceived need for bail bond companies.

I'll talk about those bail decisions next time.

Accountability in the Bail System

Now Peter Hermann's on the right track.

At least that's what I thought when I began to read his article in the Sun last Sunday. He described three young people from Canada arrested for misdemeanor theft in Baltimore, one of whom got a bail of $1,000 and the other two bails of $175,000. Here was a good example of injustice in the bail system that needs addressing.

But my enthusiasm waned when Hermann used the case to beat the drum again for taxpayer-paid lawyers at commissioner hearings as the solution. (At least that's what he appeared to do. Allowing journalists to drift back and forth between reportage and opinion pieces, like Hermann does, makes it hard to discern their perspective sometimes.)

Hermann cited, once again, those who want taxpayers to pay for lawyers to tell commissioners what they should do (which will always be to release defendants.)

How about we just get well-trained commissioners?

Commissioners are supposed to see defendants within 24 hours of their arrest primarily to determine whether they can be released from jail pending their court date. They can release them on their promise to come to court, which happens for just under half of those arrested in Maryland. They can require a defendant to post some form of bail. And there are some defendants that commissioners cannot release by law, such as those charged with first degree murder. (Only judges can release those defendants.)

If a commissioner sets a bail and the defendant does not post it within 24 hours, judges are supposed to review the bail at the next session of the court. But over a weekend, defendants can wait 2-4 days for a judicial review, so the initial bails are very important to defendants. And likewise, a commissioner can let a dangerous offender out before a judge ever sees the case, so initial bails are important to public safety, too.

As the Hermann piece makes clear, commissioners can set wildly divergent bails for similar crimes and similar past records of defendants, and they can set excessive bails. They also can set grossly inadequate bails for dangerous offenders, a side of the issue Hermann fails to mention.

Why do they do this? Because like most of the rest of the criminal justice system, commissioners have little real idea how to identify and evaluate risk factors. They are allowed to pull numbers out of a hat. And that's not their fault. They work for the judiciary, which is responsible for training them and monitoring what they do. Judges lack a consistent process for setting bails, too.

Setting bails is only one part of a commissioner's job. Taking bails is another, also important to defendants getting out of jail. And if my personal experience with the bail process is any indication, the judiciary may have problem areas there as well.

I happened to bail out an acquaintance of mine this past summer. I went down to Central Booking with my Mastercard, only to be told they only took Visa. I went home, retrieved my Visa, and this time was told by another commissioner that they only took Mastercard. Fortunately I still had it with me, but they used some convoluted telephone process that didn't work. I was forced to go out and find cash in the evening, and since the bail was more than my ATM limit, had to find my acquaintance's daughter to help.

When the daughter and I returned with our combined ATM cash the commissioner would not give change for $760, insisting upon the exact amount of the $750. We got change from a jail employee, sparing us from going out in an unsafe neighborhood in the dark with that cash. We finally posted the bail after a multi-hour ordeal.

But my acquaintance was not released that evening. Instead, she spent an extra 17 hours in the detention center. When she arrived there from Central Booking the toilet paper had already been handed out, so she got none. Jail officials turned off the water in her section all morning for repairs, so none of the 3 toilets for 35 women were flushed of any waste. Officers filled a large garbage can with water for both drinking and washing for the inmates. A correctional officer kept referring to the women as "bitches." A large young woman attacked a skinny old one without interference from staff. I could go on.

I called the next morning when I found out that my acquaintance was still in jail and was told that they didn't release anyone between midnight and 8 a.m. When I investigated on what authority the jail could hold someone who had been bailed, I was eventually told (over a month later) that this had been going on for three months but the problem was now fixed thanks to my e-mails to Public Safety.

But that wasn't even why she wasn't released, because we had posted her bail at 7 p.m. It turned out that the commissioner--who was handling a personal call during the whole bail transaction--failed to turn the paperwork in to the jail staff.

A lawyer for the defendant wouldn't have gotten my acquaintance out any faster than I did. Heck, I am a lawyer and she was held in jail. No, sometimes it just comes down to plain old human competence, caring, supervision, training and accountability. That's the first thing we need to fix the bail process.

The second is a coherent, consistent philosophy of who should be released pending trial and by what mechanism. We don't have such a philosophy, and the mechanism that's now in place stinks.

More on that to come.