In the previous two articles we discussed private bail and public bail. In this article we will compare the pros and cons of each model.
Theoretically, the good points of a p.r. bond (also sometimes known as o.r. for “own recognizance”) are that it will allow the judge to offer the indigent an opportunity to get out of jail without expense. It requires only the payment of the bond forfeiture by the indigent person if he does not show up. The payment of the forfeiture is a quixotic thought at its best. According to the American Criminal Justice Research Institute, there is no evidence that shows this bond has ever “paid off” anywhere in the United States of America. (“Paid off” is a term used for collection of bond forfeitures).
This personal recognizance bond also could be used for prominent people in the community who are well known and who may have little reason to leave the community. Local elected judges, however, found that high failure to appear rates cause a great deal of criticism, particularly during election year. Therefore, some local governments developed, or worked for the, development of, the pre-trial release agency’s “direct release and monitor” system. Personal recognizance bonds are designed to get the criminal defendant to take some quasi-responsibility for his failure or success. In practice, however, pre-trial release agencies in many areas, we have found, are headed by lawyers who, for all practical purposes, believe that everyone will just naturally show up for court trial. In spite of determined efforts and their attempts to sophisticate these systems, “failure to appear” rates have never dropped much below twenty percent for misdemeanor bonds and fifteen percent for felony bonds. To offer an illustration of how such p.r. systems can grow, just like other government bureaucracies, the Washington D.C. pre-trial bail agency started out in 1967 with a budget of $75,000 and a staff of four. In 1981, they had a $1,100,000 budget with a staff of over sixty-one.’ The cost for personal recognizance bonds utilizing pre-trial release agencies has been estimated at $356 per release. This has produced a substantial cost to the victims, the taxpayers, and a substantial relief to criminals! In addition, the pre-trial release agencies do not address the indigency problem, nor have they ever proven that they reduce the jail population.
Some of us involved in the criminal justice system argue that pre-trial release agencies have actually become criminal welfare agencies, with lots of benefits and entitlements for criminals but little benefit to taxpayers. The pre-trial personal recognizance bond provides no one to monitor or watch the criminal defendant while out on bail, and relies solely upon the overworked police forces as those who will somehow bring the defendant back to justice and incarcerate them. It is estimated that ninety percent of the people incarcerated are found guilty. While only four percent of those go to long-term sentencing, the rest theoretically are subject to substantial fines or probation, which reduces the cost to the victims and taxpayers. The personal recognizance program, while once intended for the indigent, may actually discriminate against the indigent in many in-stances because of the various “point systems?’ These point systems may allow the wealthy criminal to qualify to get out of jail because the bureaucrat, in his desire to enhance his position through more releases, will spend more time interviewing and getting a rich man out, not taking time to determine if the indigent accused is likely to remain in the community for trial. The pre-trial release programs have been a bonanza for many criminals and criminal attorneys.
As an example, in Austin, Texas, a criminal attorney can get a defendant out of jail at night by just showing his bar card and promising to bring him back the next morning for a hearing before the judge. At that time he will get. a pre-trial personal recognizance bond for his client. The lawyer charges the criminal defendant for getting him out of jail just as much as it would cost to make a surety bond. Instead, he persuades the judge to give a personal recognizance bond, and no one has any liability whatsoever on the accused, certainly a position that any private surety would welcome for private bails! These programs have turned into little more than programs releasing rapists, murderers, robbers, drug addicts and other criminals in the world without the public’s knowledge. It is not abnormal to see a judge, on the recommendation of pre-trial release agency, set a $200,000 personal recognizance bond on a defendant with a drug charge even though that defendant has only been in the community for a short period of time.
Many times the release is recommended by an attorney who asks for a personal recognizance bond from the judge. Because there is no one properly to monitor the program, and everyone benefits except the victim taxpayer, who’s to say anything? It is interesting to note that a convicted Supreme Court judge in Texas was given a personal recognizance appeal bond. He proceeded to forfeit the bond and go to Grenada, and it took several years before he was captured at the cost of nearly $1,000,000 to the tax losses, and ninety percent goes to the expenses of tying up the collateral, going out and recovering the criminal defendant and, hope-fully, making a profit. Sometimes sureties, in order to help unload jails, will secure or “make” certain risky bonds and will take property of any kind as collateral. The property is returned to the defendant or indemnitors when the criminal defendant goes to court and the case is disposed of.
In my next article I’ll discuss the advantages of the Free Enterprise Bail Agent.