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.

Bad judge, Bad bail review..and then there's Prevas

Reporter Justin Fenton was attending the bail review of a high-profile case when he caught the bail review of one William Campbell. And from that we get a column from Peter Hermann about the unfairness of the bail review system.

Hermann had something good to write about, but it wasn't about the unfairness of the bail review system.

Hermann (and Fenton in his blog) describe a bail review where a defendant had his bail amount tripled when he tried to represent himself. Cue Doug Colbert, the law professor who thinks Marylanders should pay for lawyers for all arrested persons before a bail commissioner. And of course, Colbert tells Hermann that a lawyer would have made all the difference.

Except that in Baltimore a lawyer was already supposed to be representing Campbell. Under a funding agreement with the state, the public defender's office represents jailed defendants who don't post their initial bails and appear before a judge to review those bails. Hermann and Fenton don't tell us why the assistant public defender in court that day didn't speak for Campbell.

Did Campbell refuse public defender representation, as some defendants do? Did he fail to cooperate? Did jail officers deny access to a lawyer? Did the public defender's office screw up? Without this piece of the story, we can't draw any conclusions about what difference "the right to a lawyer" made or could have made for Campbell. The reporters also don't give us enough facts about Campbell's background and charges to suggest he could have gotten his bail lowered enough to make it. [Subsequent to my original post, I found out more about Campbell. See More to the Story, below.]

Lacking all the facts, this isn't a story about a defendant railroaded by a speeding locomotive of a bail review system, as Hermann tells it. It's really a story about a bad judge.

When a private lawyer predicted to Fenton that Judge Charles Chiapparelli would raise Campbell's bail to "no bail" after Campbell raised "a fuss", it meant that he had seen Chiapparelli in action before. Chiapparelli has a mean little streak, and it comes out when defendants interfere with his first purpose in court: to get out of there as soon as possible.

I mentioned Chiapparelli in The Greatest Part-time Job in the World, Part I racing through his docket so he could leave for the day at 12:15. I left out a little scene I witnessed that's relevant to tell now. A man pleaded not guilty to the charges of driving through a stop sign and failing to yield the right of way. After the police officer gave her side of the story, the man testified that he stopped for the sign but because it was set so far back he only looked like he ran it. He then started to explain his failure to yield but Chiapparelli cut him off, finding him not guilty of the stop sign violation, guilty of failing to yield, and giving him probation before judgment (which meant no points on his driving record.)

The man protested that he hadn't had a chance to speak about the second charge. An angry Chiapparelli ordered the court clerk to look up the man's driving record (which he didn't do for anyone else) and ranted about the ungrateful man's attitude. Message to everyone else in courtroom: shut up.

Chiapparelli's explanation to Hermann for raising Campbell's bail was that if a defendant talks then he looks "more closely at the facts in the case." Apparently it wasn't important to look closely at them at the beginning of bail review, when the defendant's liberty and public safety should have been just as much a concern. Chiapparelli doesn't have time for defendants who want to talk. It's next case, next case, then he's outta there.

A couple of more points about the Hermann/Fenton pieces:

1. Judge Alfred Nance did not rule that "Maryland's anachronistic system that emphasizes speed over fairness needs reform." Please. This is interpretative license taken way too far. Nance ruled that defendants have a right to a lawyer at a hearing where a commissioner sets an initial bail (based on his questionable interpretation of a Supreme Court case.)

2. Fenton wrote that "a pretrial services official and the prosecutor got to talk about what bail should be set for Campbell" before Judge Chiapparelli increased the bail without hearing from Campbell. Some could take this to mean that defendants are routinely railroaded.

The pretrial services official is a neutral party charged with investigating the defendant's ties to the community and making recommendations to city judges about whether to release defendants. And prosecutors speak at a minority of bail reviews in the city (and rarely in the rest of the state.) They are funded by War Room funds to focus on violent offenders. Only occasionally will a prosecutor appear without a defense attorney because the public defender is supposed to represent city defendants. It is far more often the other way around.

I don't oppose lawyers at bail reviews, by the way (which is different from lawyers at the time bails are set by commissioners) so long as the public defender's office doesn't get a zillion more dollars to staff bail reviews. They already are under-employed in the district offices and can spare the time. I think they can make a difference for some defendants who can be safely released after further reflection and investigation. I just don't think the Campbell incident makes the case, though I'm glad to see Judge Chiapparelli exposed.

I promised to offer my own views on what reforms are needed for the bail system. I hope to start on that next time.

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Judge John N. Prevas

In striking contrast to lazy judges like Chiapparelli, there was Baltimore Circuit Court Judge John N. Prevas, a man passionately dedicated to the law, to justice, and to his job. While controversial at times due mainly to his manner, Prevas could never be criticized for his work ethic and devotion to making legally correct decisions. In poor health for many years, Prevas refused to retire, continuing to judge through considerable pain.

Judge Prevas died yesterday, with his boots on. He will be missed.

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More to the Story

Subsequent to my original posting, I obtained this statement of charges against Campbell:

[Police officer responds for a domestic assault call.] Upon arrival, I observed a black female...crying in the living room...[She] advised me that her boyfriend assaulted her by pushing her around and choking her while in the top floor bedroom. [She] also advised me that herself and her boyfriend were having a dispute. Her boyfriend started to push her around the bedroom. [The victim] landed on her bed and her boyfriend got on top of her and began choking her with both of his hands around her neck. [She] could not breathe and began to get light-headed as a result of being choked. [Her] ten-year-old daughter walked into the bedroom and observed the suspect assaulting her mother. An anonymous neighbor also came into [the house] as a result of hearing screaming. The suspect let go of [the victim] after hearing the anonymous [neighbor] inside the dwelling yelling for the victim. [The daughter] called 911...

Once I entered the location, I located the suspect in the top level hallway. After ordering him downstairs, same gave me a name of Michael Smith...Further investigation revealed his that the suspect's name is Willliam Campbell...I observed numerous bruises and scratches around the neck and chest areas of the victim...

So Campbell allegedly assaulted his girlfriend by strangulation in front of her daughter. He gave a phony name to the police officer. He has two prior convictions for assault, violating probation in one of them. He had prior charges for armed robbery dismissed, and was recently acquitted of illegal possession of handgun.

No wonder his bail was raised. Too bad Chiapparelli only read the facts when Campbell spoke up. Rather than creating a call for bail reform, he might have allowed Campbell back on the street where he could further harm the victim, leading to a call for domestic violence reform.