Around the turn of the 20th century, commercial bail bondsmen started popping up across the U.S. and today it is a billion dollar industry. Civil rights groups and criminal justice reform advocates are pushing for jurisdictions to do away with what they call an outdated and unconstitutional practice, claiming bail bonds simply punish the poor for being poor.
“It’s not constitutional because it’s not taking the defendant’s financial circumstances into account,” said Cristina Becker, a public defender in North Carolina and a Criminal Justice Debt Fellow with the ACLU of North Carolina. “If a magistrate doesn’t find them to be public danger or a flight risk, they should be released pretrial.”
Becker said there’s no good research that shows a connection between getting a bond and showing up for court. What a bond does do, she said, is keep poor people in jail before their court date because they can’t afford the bail — whether it’s $250 or $1,000.
Reform advocates claim the use of money bonds is one of the biggest factors in overcrowded rural jails and is driving up the cost of incarceration for county governments. According to the Pretrial Justice Institute, people who have not been found guilty of charges against them account for 95 percent of the jail population growth between 2000-2014. Rural jails in the U.S. spend an estimated $14 billion every year to detain people who have not yet been convicted.
While sheriffs don’t have any say over how a magistrate judge sets a bail and/or bond, Macon County Sheriff Robert Holland offered a little insight into what he sees regarding the practice. In his experience, he said high bonds are reserved for repeat offenders who pose a public safety risk. First time offenders are usually given an unsecured bond, which means they only owe the money if they fail to appear in court.
Holland has also seen a number of people who could make their bail but choose not to be released pretrial because they plan to plead guilty and will get credit for time served when they go before the judge for sentencing.
“A lot of the time it’s a waiting game because they know they’ll get credit for time served. They’re afraid if they get out pretrial and then are later convicted, they’ll get sentenced to prison instead of jail,” he said.
Becker and others say there are effective alternatives to getting people to show up for their court date that doesn’t involve a transaction of money, which is why she thinks all counties should have a pretrial services department to work hand in hand with the criminal justice system.
“We don’t need to take the brutal approach. We’ve seen it work in other counties — if someone gets a text message 24 to 48 hours before their court date, they’re more likely to show up,” she said. “Mecklenburg County had a 90-percent show up rate after making that change.”
Cherise Burdeen, CEO of Pretrial Justice Institute, said the use of money bonds has increased over the years. While it used to be reserved for felonies, now it’s also commonly issued for low-level misdemeanors as well.
“If you look at trends of the use of money bonds you’re likely to see most charges now are given money bond and not just a citation,” she said. “And if a person of color is arrested they’re more likely to have a higher bond and are basically entering into loan agreements they’ll have to pay back for years to a bondsman.”
Becker and others also point to the impact pretrial incarceration has on a person and their families. If someone can’t make their bail, they are either forced to use a bail bondsman, put up collateral and pay 10 to 15 percent of the total bail that they won’t ever get back or they can sit in jail waiting for their day in court. Depending how long someone is waiting, they can lose their job and family stability in the meantime.
“We need to start emptying the jails, saving money and putting families back together,” Becker said. “I think part of the problem is we equate failure to appear with flight, but that’s not always the case. When there’s no public transportation, or the person is homeless and doesn’t have a steady home to receive mail, sometimes they just physically can’t get to court.”
People held pretrial can also find themselves in a more desperate situation when they’re released than when they were arrested, which makes them more likely to end up back in jail.
“Just a few days in jail increases the likelihood of new criminal activity and those held pretrial are much more likely to be convicted, receive incarceration sentences and longer sentences,” Burdeen said.
Once someone gets a failure to appear charge, a bench warrant is issued and that person can have his or her bond revoked and be placed right back in jail — creating a vicious cycle of incarceration and more paperwork for the court system to process.
Offering court date notifications is just one of many pre-trial services that counties could implement as a way to cut down on failures to appear in court as well as keep the average daily inmate population down at local jails. Those services definitely come at a cost, but advocates say it’s no more expensive than what counties are spending to fund overcrowded jails and more law enforcement officers to manage the jails. At least by offering more rehabilitation services, Becker said, you hope to improve recidivism rates.
“We need more judicial education. These practices have been going on so long that people don’t realize it’s not the constitutional way to be done,” she said. “We need to be figuring out new practices because spending $100 a night to jail someone who isn’t a public danger and isn’t a flight risk just doesn’t make any sense. Why wouldn’t we want to use that money for job training, life skill training and support services?”
Becker said having a pretrial services department would give judges and attorneys an alternative to bonds because the pretrial staff could offer supervision on cases where it’s warranted. Pretrial Justice Institute found that pretrial supervision costs about $7.17 a day compared to the average cost of incarceration, which is about $75 a day.
So why aren’t more jurisdictions moving toward offering pretrial services with less emphasis on money bonds? Becker thinks the bail bondsmen industry, which has a powerful PAC in most states, is keeping legislators from passing bail reform.
“A huge component is the bail industry — we’ve had state legislatures that are attached to the bonds industry and are looking out for their best interest,” she said.
Even without state reform, Burdeen said everyone from law enforcement, magistrates and prosecutors have the ability to decrease the use of money bonds.
“Are public defenders at these bond hearings when someone’s liberty is at stake? Are prosecutors reviewing these cases to make sure they’re not over-charging someone? That needs to be reviewed immediately and not a month or two later when the DA reviews it and decides to reduce charges,” she said.
Next week The Smoky Mountain News will take a closer look into the role of magistrate judges in Western North Carolina as well as the bail bondmen industry in North Carolina.
Bond vs. Bail
• When a person is arrested, they ordinarily have a right to seek temporary release from custody through a process of “making bail” or “posting bond.”
• The terms “bail” and “bond” get tossed around frequently. The difference between bond and bail is the source of money. Both terms allow a criminal defendant to get out of jail and enjoy temporary freedom while awaiting the next court appearance. The difference between the two terms hinges on who is posting the money and what is offered as payment.
• Bail is usually some form of property, generally in the form of cash or cash substitute, deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail. The property is held by the court until all the proceedings are over.
• A bond can be set if someone doesn’t have the money to make their bail. A secured bond is when a third party, a bail bondman, agrees to be responsible for the debt of the defendant. The bondsmen charges usually 10-15 percent of the bail amount up front and keeps it regardless of whether the defendant appears in court. The bail bondsman pays the court part of the total bail.