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Legally Speaking

American Exception - Bail for Profit

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04/01/2011 - American law is, by international standards, a series of innovations and exceptions. This is the second in a series of articles this year that will examine commonplace aspects of the American justice system that are unique in the world.

Adam Liptak originally researched and published these articles in 2007 and 2008. With permission from The Wall Street Journal, Mr. Liptak's articles have been edited for space, and we will try to update his reports with recent statistics or rulings that may have changed the law since the articles were first published.



By Adam Liptak, The Wall Street Journal, January 29, 2008

Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee. America's open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear.

Posting bail for people accused of crimes in exchange for a fee is all but unknown in the rest of the world. In England, Canada and other countries, agreeing to pay a defendant's bond in exchange for money is a crime akin to witness tampering or bribing a juror — a form of obstruction of justice.

"It's a very American invention," John Goldkamp, a professor of criminal justice at Temple University, said of the commercial bail bond system. "It's really the only place in the criminal justice system where a liberty decision is governed by a profit-making business."

Commercial bail bond companies dominate the pretrial release systems of only two nations, the United States and the Philippines. One flaw in the system cited by critics is that defendants who have not been convicted of a crime and who turn up for every court appearance are nonetheless required to pay a nonrefundable fee to a private business, assuming they do not want to remain in jail.

The American Bar Association and the National District Attorneys Association say the bail bond business discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system.

Update by R. Michael Shickich

In the Federal court system, there is a presumption against causing defendants to use a commercial bail bondsman. The philosophy is that pretrial release should not be tied to a defendant's financial ability to post a secured bond.

Instead, pretrial release at the Federal level is supervised by US Probation and Parole. This equalizes access to pretrial release among all defendants, regardless of their income or assets.

A Federal judge may require a defendant to post an "unsecured bond," where the defendant is personally liable for the money promised if s/he fails to appear.

Bill Kreins, a spokesman for the Professional Bail Agents of the United States, a trade group, says the system is still "the best in the world" because it costs taxpayers nothing, and it is exceptionally effective at ensuring that defendants appear for court.

According to the Justice Department and academic studies, the clients of commercial bail bond agencies are more likely to appear for court in the first place and more likely to be captured if they flee than those released under other forms of supervision.

That may be because bail bond companies have financial incentives and choose their clients carefully. They also have more power. In many states, bond enforcement agents, sometimes called bounty hunters, may break into homes of defendants without a warrant, temporarily imprison them and move them across state lines without entering into the extradition process.

Although the system is remarkably effective at what it does, four states — Illinois, Kentucky, Oregon and Wisconsin — have abolished commercial bail bonds, relying instead on systems that require deposits to courts instead of payments to private businesses, or that simply trust defendants to return for trial.

The experiences in those states, prosecutors say, have been mixed. "The bail bond system is rife with corruption," said Joshua Marquis, the district attorney in Clatsop County, Oregon. Since bond companies do not compete on price, they have every incentive to collude with lawyers, the police, jail officials and even judges to make sure that bail is high and that attractive clients are funneled to them.

However, Mr. Marquis said doing away with commercial bonds has affected the justice system in a negative way as well. "The fact of the matter is," he said, "that in states like Oregon the failure-to-appear rate has skyrocketed." Oregon uses a combination of court deposits, promises to appear and restrictions on where defendants can live and work.

Other countries use a mix of methods to ensure that defendants appear for trial. Some simply keep defendants in jail until trial. Others ask defendants to promise to turn up for trial. Some make failure to appear a separate crime. Some impose strict conditions on release, like reporting to the police frequently. Some make defendants liable for a given sum should they fail to appear, but do not collect it up front. Others require a deposit in cash from the defendant, family members or friends, which is refunded when the defendant appears.

In the United States, the use of commercial bail bonds continues to rise. They became the most popular form of pretrial release in 1998. More than 40 percent of felony defendants released before trial paid a bail bond company in 2006, up from 24 percent in 1994, according to the Justice Department.


Nothing in this article should be construed as legal advice. You must consult with an attorney for the application of the law to your specific circumstances.

R. Michael Shickich is the founder of the Injury Law Firm located in Casper. The focus of his practice is personal injury and wrongful death cases.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

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