In the US, you can always tell when you’re nearing a local courthouse by the number of signs and storefronts for bail bond services. These entrepreneurial bottom-feeders are an integral part of our Criminal Justice System — the method society has allowed to develop to ensure an accused person’s appearance in court. Bail bondsmen are not part of the government; they don’t answer to the courts. Rather, they are private business-people who post sureties on behalf of the accused… for a non-refundable fee (usually 10% of the court-defined bail).
If somebody doesn’t show up for court, the bondsman either finds the accused, or pays the entire bail to the court.
We just take it for granted — so much so that it’s reflected in our entertainment culture, everywhere from television to popular books. But according to the NY Times, the concept is almost uniquely American… and is illegal elsewhere in 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 businessman who will or will not take your business.”
Fascinating.
Yes, it’s absolutely true that if a bondsman thinks someone might not show up for court, s/he may very well not stand surety for that individual’s release. Then again, if someone’s a flight risk, is it in the interests of the community that they be released? And what are the alternatives?
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 returned when the defendant appears.
But injecting money into the equation, even without the bond company’s fee, is the exception. “Even purged of commercialism, most countries avoid a bail system based chiefly on financial security deposits,” Mr. Devine wrote.
The alternatives to posting cash or pledging personal property involve a massive increase in supervision and systemic overhead — not a problem if Americans are willing to spend the money on it. Are we? I doubt it.
And how well are the alternatives working elsewhere? In the UK, at least, it appears they’re having some issues. In 2005, for instance, Mr Edward Leigh MP, in an address to Parliament, said:
“Public confidence in the criminal justice system is weakened if defendants skip their court hearings, leading to failed trials. But each year some 15% of defendants don’t turn up for their court appearances. Many clearly believe that they can get away with snubbing the legal process and, disgracefully, there is some justification for that belief. Many of these defendants are not promptly brought back to court and some are never brought back.
Compare that to the bail bondsman example in the NY Times article, who had to fork over less than 1% of bonded bail amounts because somebody disappeared.
More:
Most of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system.
Our entire system is build upon the crucial foundational assumption that a person is innocent until proven guilty… and languishing in jail when one’s legal status is accused but still innocent goes right against the grain. It’d be wonderful if we could find another way, and evidently four states have given it a go.
So how’s that working out for them?
Mr. Marquis, the Oregon prosecutor, said doing away with commercial bonds had 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.
I haven’t a clue what the solution is here. Certainly there are tremendous arguments in favor of bail, not least of which include presumption of innocence, and the economic well-being of the accused. Furthermore, in a justice system already overloaded and bogged down, with jails filled beyond capacity and court dockets backlogged, we have neither the capacity to supervise nor incarcerate until trial. But failure-to-appear is also a massive drag on our system.
I really don’t see an alternative.