Citizen’s Right to Know
Private Bail Agencies Help States Monitor Criminals
By MICHAEL HOUGH ANd REBECCA HURLEY
Over the last couple of months, I have traveled across the country discussing one of ALEC’s new State Factor policy briefs, “Criminals on the Streets: A Citizens Right to Know.” I’ve traveled to Tennessee, Florida and Texas to discuss our paper and model bill. Due to the tough economy, legislators are facing difficult budget decisions this year. At ALEC we are looking for wasteful government programs legislators can cut or reform. One program legislators should look at is government-run pretrial release (PTR) agencies.
Across the country, in almost every state, there are government agencies which have taken on the awesome responsibility of releasing defendants from jail prior to their court dates. In most states there are two methods for releasing defendants from jail – the first method is commercial bail, which requires defendants to pay a small portion of their bond in order to be released. The second method is government-run PTR agencies, in which defendants pay nothing or only a small deposit and are released from jail. Because PTR programs are government entities, a large portion of their funding comes from tax dollars. Currently there are about 400 PTR operations scattered throughout the country. They range in size from hundreds of employees with multimillion dollar budgets to small, part-time operations. Overall, they cost the public close to $100 million per year.
For those who believe in limited government and the supremacy of the free-market, these agencies are frustrating as they replace a well-functioning private-sector model – commercial bail, which operates at no cost to the taxpayer – with a less efficient government alternative. In fact, commercial bail generates tax revenues and when a criminal absconds the bail agent must forfeit the full amount of the bond to the state. In contrast, when the government runs bail, once the defendant disappears no one pays bail. In Philadelphia alone, as recently reported by the quirer, criminals have cost the city $1 billion over the last 30 years by skipping out on city-issued bail bonds. This “revolving door of justice” essentially forces taxpayers to subsidize the release of dangerous criminals who are left free to commit new crimes.
The government has proven to be ineffective when it comes to making sure defendants return to court after they are released and apprehending them when they skip bail. Not surprisingly, in states where the government is the only option for bail, the number of fugitives and the number of failures-to-appear in court have dramatically increased. In Oregon, which banned commercial bail in 1978, “the failure-to-appear rate has skyrocketed,” said District Attorney Joshua Mar-
In the commercial bail industry, due to the existence of a financial incentive, apprehension of the absconder is the highest priority for a bonds agent. Bail agents return close to 97% of their skips.
quis. Criminal who skip court dates cost taxpayers in terms of rearranging and rescheduling court dates, finding and apprehending fugitives, and wasting the time of judges and prosecutors. Not to mention the additional costs resulting from any new crimes committed while the criminal is free. In it’s 1997 study, “Run Away Losses,” ALEC found that the cost to the local system for every failure to appear is $1,273.81. The equivalent of $1,688.17 in today’s dollars.
Unlike the commercial model, in PTR agencies there is no incentive for government agencies to retrieve criminals who become fugitives. In fact, defendants who abscond represent one less person a government bureaucrat has to supervise. When a person fails to appear at a court hearing, a warrant is issued for their arrest and they are entered into a national FBI criminal database. The warrant squads of most law enforcement agencies are minimally staffed and the pursuit of fugitives is a low priority for police. They don’t have the resources to chase fugitives and the only place they are likely to re-arrest an absconder is at a random traffic stop or during apprehension for another offense. In contrast, in the commercial bail industry, due to the existence of a financial incentive, apprehension of the absconder is the highest priority for a bonds agent. In fact, bail agents return close to 97 percent of their skips.
Among those freed using govern-ment-issued bonds was Paul Merle Eischeid, a member of the notorious motorcycle gang, the Hell’s Angels. Eischeid, who was arrested for his connection with a brutal assault and murder of an Arizona woman, was released on his own recognizance and required to wear a tracking device. In short order, he secured a spot on America’s Most Wanted list after removing the device and fleeing.
In Oregon, a man with 49 previous arrests and at least 15 convictions was released on a government bond while awaiting trial for burglary. During this time, he kidnapped and raped a 13 year-old girl.
Also in Oregon, Robert Holliday was kidnapped and murdered by Lee Knoch, who was out on government bail and awaiting trial for a previous assault against Holliday.
Not only are there numerous heinous examples, but thanks to a recent study by the Department of Justice, it is clear that upwards of 30 percent of defendants released by the government, who fail to appear in court, remain fugitives after one year as compared to 19 percent of defendants released on commercial bail. The Department of Justice study concluded the following:
“Compared to release on recognizance, defendants on financial release were more likely to make all scheduled court appearances. Defendants released on an unsecured bond or as part of an emergency release were most likely to have a bench warrant issued because they failed to appear in court.”
In addition to the Department of Justice, the academic world has spoken out on this subject. In April 2004, the University of Chicago Law School Journal of Law and Economics published an article by economic professors Eric Helland and Alexander Tabarrok, that concluded:
“Defendants released on surety bond are 28 percent less likely to fail to appear than similar defendants released on their own recognizance [via PTR], and if they do fail to appear, they are 53 percent less likely to remain at large for extended periods of time … Given that a defendant skips town, however, the probability of recapture is much higher for those defendants released on a surety bond. As a result, the probability of being a fugitive is 64 percent lower for those released on surety bond … These findings indicate that bond dealers and bail enforcement agents … are effective at discouraging flight and at recapturing defendants.”
We can also look at individual states to see how PTR is working.
- Illinois, which was the first state to adopt the 10 percent cash deposit system, according to the Illinois Criminal Justice Authority reports a failure-to-appear rate of 21 percent for women and 30 percent for men;
- Oregon, which outlawed commercial bail, has a failure-to-appear rate of 40 percent;
- New Jersey eliminated their 10 percent government bail program in 1995.
By comparison we know the free-market alternative commercial bail does a good job of supervising pretrial defendants. Commercial bail also causes other parties to become stakeholders in the future of the defendant. In many cases, family members or friends will
pay the fee required to release the defendant from jail and place liens on their property in order to post bail. The bail bond creates a circle of responsibility wherein family or friends have a monetary incentive to make sure the defendant makes all of his or her scheduled court appearances. Studies have shown that commercial bail helps maintain social control over defendants during the pretrial period.
Commercial bail has a long history in America as it is an outgrowth of English common law. In medieval times a magistrate would travel the countryside and try defendants. Rather than hold these defendants until the magistrate arrived, the local sheriff would release them into the custody of friends or family. This system carried over into America and is enshrined in the U.S. Constitution in the Eighth Amendment which prohibits the use of “excessive bail.” In the current system, when a criminal is incarcerated upon probable cause, he or she has bail set by a judge and once bail is posted they are let out of jail until their next hearing. For a small fee – usually 10 percent of the total bond amount – a bail bonds agent will take responsibility for the defendants bail. A bail bonds agent works with an insurance company who acts as a “surety” and guarantees the full amount of the bond.
At a minimum, agents have to meet the state’s licensing and continuing education requirements. They have to comply with other regulations pursuant to business and professional codes. In addition, they have to honor their contractual requirement with the courts and their insurance company on every bond they write. They are subject to a tax on insurance premiums and exposed to legal liabilities like any other business. If their client skips, they have to pay a forfeiture in favor of the state. The commercial bail bonds industry is a natural market-driven development. Over the last 100 years, commercial bail has become well established and 47 states have enacted statutes allowing public authorities to accept commercial bail. Because this system costs taxpayers nothing and does a good job bringing defendants back to court, more and more judges are relying on commercial bail. In fact, the percentage of defendants released on commercial bail has increased from 25 percent in 1990 to over 40 percent in 2004.
The Department of Justice study, along with a number of academic studies, prove the public is appreciably safer with defendants released by commercial bail than by government PTR. Which system does the taxpayer fund? The more dangerous one.
If state and local governments are going to continue to fund and operate PTR agencies, there needs to be some accountability brought to the system. Just as a number of states are enacting transparency requirements when it comes to spending, similar laws should be enacted when it comes to PTR agencies. The primary purpose of government is the protection of life and property. Unfortunately, information about the effectiveness of PTR agencies is woefully lacking. About half these agencies do not even keep track of their failures to appear.
Furthermore, it is a matter of justice to the taxpayer that PTR agencies should keep records on those they release and make that information available to the public. PTR agencies owe an account of their stewardship to the public who funds them and for whom they work. The Citizen’s Right to Know bill would right this wrong by demanding that PTR agencies reveal:
- Their budgets and staffing;
- The number of, and kind of, release recommendations made;
- The number of defendants released and under what kind of bond;
- The number of times a defendant has been released, his or her failure to appear for court and crimes committed while on release;
- Report the above in a timely and intelligible way and make it available to the public.
Both Texas and Florida have enacted the Citizen’s Right to Know Act. Unfortunately in Texas, where the law was enacted in 1995, many PTR agencies are refusing to turn over required information, or what they turn over is impossible to decipher by the public. Last year, this problem led ALEC’s Public Safety and Elections Task Force to amend its Citizen’s Right to Know model bill by adding an enforcement sanction for PTR agencies who do not comply with the law.
If necessary reforms in the criminal justice system are to occur, the public and legislators need to know how much money is being spent to bail criminals out of jail, and how many individuals are skipping their court-appointed hearings and subsequently committing new crimes. With many states facing tight budgets and deficits in the years ahead, the question needs to be asked “Why do lawmakers continue to fund a government service that is being provided for free and better by the private-sector?”
States with PTR agencies should at a minimum adopt ALEC’s Citizen’s Right to Know Act. The information from this bill is needed so legislators can reform dangerous PTR agencies that are potentially increasing crime and releasing criminals at the taxpayer’s expense.
This article is reprinted with permission from Michael Hough and Rebecca Hurley (Washington, DC: American Legislative Exchange Council, 2009) www.alec.org