In a recent New York City CJA Bulletin, an argument was made questioning the effectiveness and need for commercial bail. The article referred back to a position taken by the American Bar Association back in 1964 and again in 2007 that “Compensated sureties should be abolished.” Read AIA’s response to this bulletin in a letter that was sent to all NYC judges this week.
Dear Judge ______:
The referenced paper attempts to make a case for disposing of commercial bail bonding as a means of release pending trial in the boroughs of New York City.
Since our companies, Allegheny Casualty Company and International Fidelity Insurance Company are the City’s oldest and largest insurance companies underwriting bail, we felt compelled to briefly respond.
In providing a multitude of statistics in her argument for alternative methods of release, the author noticeably omits the most important information of all: statistics demonstrating comparable failure to appear rates.
While vilifying the private sector bonding industry for being paid, not by the City but by the industry’s customers for the service it provides, she fails to indicate that this system does a far better job of getting persons to court than any other approach.
The author must understandably ignore the very purpose of bail in the first place, (ensuring the appearance of the defendant as directed) else her argument necessarily fails. But this convenience on her part cannot be overlooked by any fair appraisal of the proposition that commercial bail should be eliminated.
The fact is well established through a number of highly credible studies (these are readily available and will be immediately supplied by the undersigned upon request) that commercial bail significantly outperforms all other methods of pretrial release, including full or partial cash deposits. Furthermore, the recidivism rate among those released via bail bonds is lower.
So, if reappearance of the defendant and reduction in the number of crime victims are discounted as being of no importance, then the author’s call for abolition of commercial bail is sound. Otherwise it does not follow.
Finally, much ado is made of the ABA’s recommendation that “Compensated sureties should be abolished.” As a long-standing member and being a published author of the ABA on the subject of bail, I will acknowledge that it is no secret that some attorneys would prefer to have the bail bond premium go toward their fee. But that does not speak to the effectiveness of the compensated surety system, one way or the other.
The facts are that commercial bail gets defendants to court and enhances public safety, and not only is this accomplished at no cost to New York City, but positive revenue is generated in the payment of bail forfeitures in those low percentage of cases where the industry is unable to produce defendants for disposition of the charges against them.
Thank you very much for providing us this opportunity to set the record straight. If there are questions, or we can provide any additional information please do not hesitate to contact us.
Sincerely,
Jerry W. Watson
Chief Legal Officer, AIA