March 2013, Volume 26, No. 3
By Kate Lind, J.D.
The risk of flight associated with criminal defendants comes with a threat of heavy costs, most seriously those to public safety. While a majority of felony defendants are granted some form of pretrial release in the United States, 25 percent fail to appear for their court dates. The pretrial release system, tasked with ensuring that defendants appear at court, is falling short. Evidence suggests, however, that there are ways to minimize the risk of non-appearance while avoiding unnecessary detention of defendants.
For most of U.S. history, pretrial release hinged upon the posting of financial bail. However, by the 1960s, concerns regarding corruption and inequities within the bail system began to shift the presumption in favor of nonfinancial bond. This presumption took hold nationally as courts increased the use of nonfinancial pretrial release conditions and reduced their reliance on the commercial bail industry.
However, trends have more recently begun to show an increase in the use of monetary bail and commercial sureties. Between 1990 and 1998, the percentage of defendants released on financial bail increased from 24 percent to 36 percent. The U.S. Department of Justice study cites the increase in the use of commercial surety bonds as an explanation for this trend. This correlates with statistics that show that commercial bail has a 28 percent lower failure-to-appear rate than unsecured release and that defendants on pretrial release via commercial bail are less likely to commit new offenses while on release.
As one of only four states to disallow commercial bail, Wisconsin has begun to weigh its reintroduction. Another state to watch very closely is Oregon, which has been seriously considering the reintroduction of commercial bail for some time. Oregon has struggled with a 30 percent failure-to-appear rate, which has increased since commercial bail was outlawed within its borders. Both states would be following in the footsteps of the 1st Judicial District of Pennsylvania, which recently reversed a ban on commercial bail as part of an initiative to reform its floundering pretrial criminal justice system.
While commercial bail has demonstrated its efficacy at ensuring appearance at court, evidence also suggests that there is no one-size-fits-all solution in pretrial release decision-making. An evidence-based approach that incorporates a range of alternatives, including the availability of commercial bail, should instead be taken.
The reintroduction of commercial bail, integrated with pretrial assessments and services, would create a valuable option to prevent failure to appear while protecting the financial and public safety interests of Wisconsin.
A 2007 Bureau of Justice Statistics (BJS) analysis of 15 years of data revealed that 62 percent of felony defendants in the United States are granted some form of pretrial release.1 This means that a majority of defendants accused of a felony are released from jail pending their court dates. Consider this alongside evidence that a significant percentage of defendants on pretrial release are re-arrested for committing additional crimes, and further that 25 percent of all released felony defendants fail to appear for their court dates, and the costs to society are unsettling. 2
Failure of defendants to appear for court creates tangible financial costs related to the rescheduling of court dates and the wasted time of judges, attorneys and court personnel. There is also the added expense of locating and re-arresting the defendant, if it is even possible to do so. However, the indirect costs to society and public safety are perhaps the most serious cause for concern. Of the 25 percent of released felony defendants who fail to appear (around 200,000 individuals), 30 percent will remain fugitives after one year. Data suggest that felony defendants who fail to appear carry an increased likelihood of committing additional crimes, an indirect but very real cost to society.3
Felony defendants are a high-risk population from a public safety standpoint. A sampling of Bureau of Justice Statistics for state courts show that 16 percent of felony defendants were rearrested for a new crime while on pretrial release for their initial charges.4 Consider also that this figure does not include defendants who committed new crimes for which they have never been apprehended. While felony defendants are not necessarily guilty, it bears mentioning that an individual with a single prior offense will go on to commit another offense 39 percent of the time.5
As the Pennsylvania Joint State Government Commission pointed out in a recent report on Philadelphia’s criminal justice system, “When defendants skip court, old victims are victimized again and fresh ones are created as fugitives commit more crimes. For some fugitives, ducking out on court is a tactical step that wears down witnesses and helps set the stage for the eventual collapse of their cases.” 6
According to a search of data made available through Wisconsin’s Consolidated Court Automation Program (CCAP), as of December 2012 there were 979 open felony cases statewide with an outstanding warrant issued since December 2011.7
This figure does not include failures to appear for criminal misdemeanors and criminal traffic. As time permits, law enforcement agencies might search for bail jumpers, depending on the severity of the offense. However, the reality is that resources are simply not available to devote to this purpose in most cases.
The Importance of Pretrial Release
A History of Pretrial Release
The idea of releasing defendants on bail has enjoyed a long history in the United States. Releasing defendants on bail before trial prevents unnecessary detention while ensuring that defendants will return for court appearances. Well into the 1900s, pretrial release was usually contingent on the posting of financial bail set in relation to the severity of the offense. The purpose for which financial bail was developed in the Unites States was to ensure that the released defendant would return for trial. 8 As the 20th century progressed, inequities of the bail-setting structure and the burden of financial bail on lower-income defendants became topics of concern.
For example, in the 1920s, a study of the Chicago bail system revealed that hundreds of prisoners awaiting trial were detained on bail of between $5,000 and $20,000, which they were unable to pay. Not only did most of these defendants have deep and well-established roots in the community, but a majority would ultimately be discharged or acquitted upon final disposition of their case. The conditions under which defendants were detained pending bail determinations were particularly harsh as well. According to one observer, “a person with any decency would feel that one night there had defiled him for life.”9
At the time of the Chicago study, fewer than 5 percent of defendants in the Chicago court system were allowed release via signature bond, and serious questions were being raised nationally as to the appropriateness of bail-setting practices by state and federal courts. One investigation conducted within the New York court system concluded that a large portion of the judges and district attorneys had forgotten (or had never learned to begin with) that the purpose of setting bail is to assure appearance at trial. 10 By the 1960s, the dialogue had progressed to the point that federal bail reform measures were introduced to correct inequities within the system.11 In a report prepared for the National Conference on Bail and Criminal Justice in 1964, it was thus observed:
“Each year, the freedom of hundreds of thousands of persons charged with crime hinges upon their ability to raise the money necessary for bail. Those who go free on bail are released not because they are innocent but because they can buy their liberty.”12
Revisions to local bail systems gained consideration in many areas across the country, perhaps most notably with the Manhattan Bail Project in 1961.These bail reform efforts embodied the argument that defendants could be successfully released pretrial without a financial guarantee. The Manhattan Bail Project pioneered new approaches to pretrial release in New York City courts based on its findings that certain defendants are unlikely to flee, regardless of their ability to pay for financial bail. The assertion was that, given the right circumstances, such as evidence of stability and ties to the community, releasing defendants on nonfinancial release could be an effective way of ensuring appearance at court. Another outgrowth of the Manhattan Bail Project was a focus on improved fact-finding mechanisms to improve pretrial release decision-making based on these variables.13
Taking a cue from experiments and revisions being made in many areas of the country, the Federal Bail Reform Act of 1966 sought to solidify the presumption in favor of pretrial release for noncapital defendants. Most states passed legislation to follow suit. Also at this time, the expanded use of a variety of nonfinancial alternatives for pretrial release took hold.14
Federal bail reform legislation of the 1960s and 1980s reversed the presumption of financial bail in pretrial release practices. This legislation directed assessments of flight risk and mandated the presumption of release on recognizance with the imposition of the least restrictive conditions. Bail-setting practices were thus refocused toward ensuring release of those with a favorable past record and strong community ties. These reforms were based on the policy of reducing unnecessary detention when defendants were not believed to be a flight risk or a danger to the community through alternatives such as refundable deposit bonds and conditional release on signature bond.15 While federal bail reform promoted the increased use of nonfinancial bail, it is also notable that it did not eschew the use of financial bail or the practice of commercial bail. It was acknowledged that while the traditional system certainly exhibited room for improvement, the use of financial bail continued to be appropriate, depending on the facts.16
Forms of Pretrial Release
In Wisconsin, as elsewhere, a defendant arrested on a criminal charge may be eligible for release into the community pending potential conviction. Under Chapter 969 of the Wisconsin Statutes, the conditions of pretrial release must be reasonably designed to assure the defendant’s appearance in court, to protect the public safety and to prevent intimidation of witnesses. Aside from the policy against unnecessary detention pending trial, appropriate considerations of the court in contemplating pretrial release include the ability of the defendant to afford bail, the severity of the offense and potential penalty, prior criminal record, character and reputation of the defendant, the strength of the evidence presented to the judge, and past history of bail forfeiture or violation of a condition of release.17
The first option that judges in Wisconsin have is to release defendants on “signature bond” without any type of financial bail. The defendant is released upon a promise to return, often with conditions. Examples include restrictions on travel, association, possession of weapons, and other conditions as may be deemed reasonable to ensure appearance of the defendant. Conditional release may also involve monitoring by a pretrial release agency.
A judge may alternatively set a bond amount and require the defendant to sign an unsecured appearance bond or, in rare circumstances, require the defendant to secure the bond with sufficient property to cover the amount. If the defendant then fails to appear he could be held liable for the entire bond amount and, if necessary, a bench warrant could be issued for his arrest and return to custody. 18
Wisconsin courts also have the option to use various forms of financial pretrial release such as cash bail. The defendant in such cases pays the full or partial amount of a bail amount set by the court to secure his release. The amount, or a portion of the amount after fees and restitution in case of a conviction, is returned to the defendant upon resolution of his case, assuming all court appearances are made. 19
Wisconsin courts also have the option of releasing defendants on surety bond, but with a limitation not found in most other states. A surety bond is used when a third party agrees to cover the amount of the bond if the defendant fails to appear for court. In Wisconsin, however, this third party indemnitor cannot be compensated for assuming this risk under Section 969.12(2) of the Wisconsin Statutes, which generally means that the indemnitor is a friend of family member. This limitation in Wisconsin surety laws currently outlaws the option of commercial bail.
Though disallowed in Wisconsin, the concept of commercial bail is widely used nationally by both state and federal courts. At present, Wisconsin is one of only four states that do not currently allow its use. In commercial bail states, bail agents operate as independent contractors to post bond for their defendant clients.
Commercial agents are backed by surety companies and are therefore able to use their financial standing and credit as security on defendant bonds. The defendant pays a fee, generally around 10 percent of the total bond amount, to compensate the bail agent for the services and for accepting the risk. Commercial bond agents generally ask for collateral as well, to mitigate their risk.20
If the client of a commercial bail agent fails to appear for court, the bail agent generally has an opportunity to find the defendant. If the defendant is not produced within a set time frame, liability for the full bail amount is shifted to the bail agent. Thus, commercial bail agents have a strong incentive to monitor and ensure that their clients make their court appearances. Because effective monitoring of defendants is necessary for commercial bail agents, they employ methods such as meticulous information-gathering on the defendant, and check-in requirements that range from routine to rigorous.
Pretrial Release Decision-Making: Trends and Statistics
The 2007 BJS analysis of almost fifteen years of data showed that 62 percent of felony defendants are released before the disposition of their case in U.S. state courts. 21 With a majority of felony defendants being granted pretrial release, is there a single method that stands out as most effective in avoiding the high costs of failure to appear? Certainly, a carefully considered decision to grant pretrial release on signature bond is a preferable alternative to the granting of emergency release to relieve jail overcrowding. Defendants granted emergency release are the most likely to fail to appear.22 While emergency pretrial release does not widely occur per se, the pressures of overcrowding do heavily influence the pretrial decision-making process in Wisconsin.
The merits of nonfinancial versus financial pretrial release have been debated at length. The argument that nonfinancial release can be as effective as the posting of bail helped to drive the bail reform legislation of the 1960s and 1980s. The Manhattan Bail Project and other studies at the time created an ideological environment in favor of releasing defendants pretrial on their own recognizance if they exhibited variables suggestive of low flight-risk.23
For many years, nonfinancial release was favored within state courts. However, the trend of financial release steadily increased, until, in 1998, it became more prevalent than nonfinancial release as shown in Figure 1. From 1990 to 1998, the percentage of defendants released with a requirement to post bail rose from 24 percent to 36 percent. The Department of Justice study that analyzed this data cited the increase in the use of financial release as being a result of a decrease in the use of release on recognizance along with an increase in the use of commercial surety bonds.24
Source: Bureau of Justice Statistics study. 25
These national trends provide insight into what courts across the country are finding to be the most effective means of ensuring the appearance of felony defendants. These statistics have not gone unnoticed in other jurisdictions where commercial bail has been outlawed. As discussed in more detail below, Philadelphia courts recently reversed a ban on commercial bail following a pilot program that tested its reintroduction on a restricted basis. Similarly, due to a 30 percent failure-to-appear rate that has spiked since the state prohibited the use of commercial surety bonds, Oregon has also recently considered the re-introduction of commercial bail. 26
With three-fifths of all felony defendants being granted pretrial release, and the high financial and public safety costs associated with nonappearance of these defendants, these trends are worth a very close look in Wisconsin as well. Careful consideration should be given to the fact that the increasingly utilized option of commercial bail is not currently available in Wisconsin.
An Analysis of Commercial Bail in the United States
Commercial bail is an accessible option across much of the United States. All states but Wisconsin, Illinois, Kentucky and Oregon currently allow the use of commercial surety bonds. Commercial bail is used to varying degrees of frequency across the remaining states and in federal courts, but the overall national trend shows an increase in its prevalence.
Industry Image and Threat of Corruption
Criticism of the commercial bail industry became increasingly common in the 1960 with the advent of bail reform. These days, some of the most colorful ire against the industry seems to stem from the image prevalent in the popular media. An article written by a law fellow at the Center for Media and Democracy in Madison and published in The Capital Times provides a good example:
“Commercial bail bonding would introduce new opportunities for judicial corruption, or the appearance of corruption, further diminishing the public’s faith in the judiciary. And along with a probable concealed carry law, allowing bounty hunters to roam the state and enter homes without warrants may not be the best plan for public safety.”27
This negative image of commercial bail, while persistent, is of questionable semblance to the commercial bail industry today. A January 2013 criminal justice advisory report from Philadelphia notes, “Unlike the bail bondsman of yesteryear, today’s surety is usually a professional person more akin to a corporate insurance agent than a gun-wielding cowboy.”28
Part of the image problem centers around the idea of commercial bail as a corrupting influence on the criminal justice process. One district attorney in Oregon is cited as suggesting that commercial bail agents have an incentive to collude with lawyers and judges to set bail at high rates and in other ways create profitable clients for bail agents.29
Opponents of commercial bail, for example, cite the 2010 impeachment and removal of former U.S. District Court Judge Thomas Porteous of the Eastern District of Louisiana. He was removed, in part, for accepting gifts from attorneys and a commercial bail agent who did business in his district. Advocates for commercial bail acknowledge that while cases of abuse occur within the system, as they might in any business, the industry can be effectively regulated through careful legislation, and that it is further regulated internally due to the highly competitive nature of the business.30
The threat of corruption has been specifically cited by Wisconsin state Rep. Fred Kessler (D-Milwaukee) as the reason commercial sureties were abolished in Wisconsin in 1979 to begin with.31 Kessler asserts that if commercial bail were re-introduced in Wisconsin, while judges would still have the option of allowing for pretrial release on signature bonds, many would not because of corruption and indebtedness to bail agents who donate to their campaigns.32
These types of claims have been such a pervasive part of the conversation regarding commercial bail that the drafters of the 1980 ABA Standards for Pretrial Release included a statement in the notes stating, “The extent of corruption involving compensated sureties has been exaggerated.”33
It seems that most policymakers in Wisconsin hold the state’s criminal justice system and the integrity of the courts in higher regard as well. Much of the serious discourse surrounding the re-introduction of commercial bail in the state has centered around other issues, such as the efficacy of commercial bail agents, the financial impact it would have on Wisconsin, and the overarching concern of public safety.
Furthering Public Safety by Discouraging Flight
It is argued that because they stand to profit from the bail process, commercial bail agents do not have an interest in assuring public safety. U.S. District Court Judge James G. Carr from the Northern District of Ohio made the following criticism of the commercial bail industry:
Whether a defendant who otherwise qualifies for release obtains his or her pretrial freedom “should not be based on the whims and vagaries of commercial bondsmen whose operational strategy is centered on financial gain rather than the interests of the individual accused.”34
Others argue, conversely, that the financial incentive for commercial bail agents actually aligns their interests with those of the courts and the public. Because the liability for bail forfeitures is shifted to the bondsman, it is estimated that at least 95 percent of commercial bond clients must show up for their requisite court appearances in order for a bondsman to break even.35 Linda Braswell, president of the Professional Bail Agents of the U.S., more conservatively estimates that a bondsman could not stay in business with a failure-to-appear ratio of more than 2 percent.36
Due to this powerful incentive to ensure the appearance of defendant clients, bail agents generally require special conditions such as monitoring and check-ins to reduce the likelihood of flight. This might involve anything from telephone contact to weekly personal visits to the office of the bail agent, depending on the bail amount and potential for loss.
Commercial bail agents employ a variety of additional strategies to reduce the risk of non-appearance as well. Clients and co-signers on the bond loan are reminded of upcoming court dates. Thorough information is collected on the client upfront to thwart flight and to improve the likelihood of re-arrest, should the defendant fail to appear for court. The bail agent gathers this information in great detail, right down to specifics on employment, friends, pastimes, hobbies and tattoos.37
Aside from monitoring and providing reminders of court dates, commercial bail creates financial incentives for clients. A defendant who fails to appear becomes liable to the bondsman for the full amount of the bond. Because defendants are often judgment-proof, commercial bail agents create a system of collateral and family co-signers in a more effective manner than the court deposit bond system. 38 By securing a fee and collateral of property from both the defendant and co-signers, the commercial bail system is effective at creating a network of parties who have a similar interest in ensuring the defendant’s appearance in court.39 The bail industry refers to this network as a “circle of responsibility,” which is suggested to be one of the reasons that surety bonds have consistently lower failure-to-appear rates than defendants released on other methods.
Commercial bail agents are able to be more effective than courts at creating and following through on measures to prevent failure to appear because they have the time and resources to devote to it. They are not stymied by the same heavy caseload as the courts.
In the world of commercial bail bonds, if prev41 entative measures fail, bail agents are generally allowed a window of time in which to recover the defendant to avoid forfeiture of the full bail amount. Bail agents will either recover a defendant themselves, tip off law enforcement as to the defendant’s whereabouts, or enlist the services of bail enforcement agents, most often in cases where a defendant is thought to have crossed state lines.40 Industry performance is purported to be at a 98 percent success rate. Of every 100 defendants released on surety bond, it is estimated that eight will skip bail and all but two will ultimately be recovered.
Efficacy of Commercial Bail
National statistics show that one-third of defendants released on bond were charged with at least one type of pretrial misconduct, 16 percent being rearrested for committing a new crime while out on pretrial release, more of half of which were felonies. Nearly one-fourth of defendants on pretrial release had warrants issued for failure to appear.
Financial release, in and of itself, is a deterrent to re-arrest on pretrial release. According to the 2007 BJS analysis of state court data, “Characteristics associated with a greater probability of being rearrested while on pretrial release included… being released on an unsecured bond.” Defendants on financial pretrial release are more likely to appear at all scheduled court dates than those on nonfinancial release.42
Among the options for pretrial release, commercial surety bonds have been shown to be the most effective. Defendants released on surety bond are 28 percent less likely to fail to appear than similar defendants released on signature bond. In cases of failure to appear, the probability that the defendant will remain at large for more than a year is 53 percent lower for those released on surety bond than for those released on signature bond. Deposit bonds, by comparison, perform only marginally better than signature bonds in preventing failure to appear.43 Restated, defendants released on commercial bail had a lower failure-to-appear rate and were less likely to commit new offenses while on release than similar types of defendants on unsecured release.
The findings regarding failure to appear were even more striking in a recent study conducted on behalf of the Dallas County (Texas) Criminal Justice Advisory Board released in January 2013. As shown in Table 1, an analysis of Dallas County records revealed that felony defendants released on commercial bail were up to 56 percent less likely to fail to appear in court compared with other release mechanisms. Misdemeanor defendants released on commercial bail were up to 32 percent less likely to fail to appear.44
Failure to Appear: A Study in Texas
Difference in failure to appear versus commercial bail
Pretrial Services Bond
Pretrial Services Bond
Pretrial Services Bond
Source: Analysis of data from Dallas County, Texas.45
Financial Impact of Commercial Bail
Reduced Costs to Taxpayers and the Criminal Justice System
The lower failure-to-appear rates boasted by the commercial bail industry translate into significant monetary benefits. In a study conducted by a professor at the University of Arizona in the 1990s, the cost of a single failure to appear was calculated based on the loss of time for attorneys, judges, court officers, witnesses and law enforcement.46 Adjusted for inflation, this cost is estimated at $1,775 for each failure to appear. Applying this cost estimate to the Dallas County findings, it is estimated that the utilization of commercial bonds saved approximately $350,000 for every 1,000 felony defendants and over $160,000 for every 1,000 misdemeanor defendants.47
Since the 1960s, critics of commercial bail have asserted that commercial bail provides no service that cannot be provided by other government agencies. While it may be that other agencies can serve the similar functions, the purpose of bail is to secure the appearance of defendants in court. State court data demonstrate that the commercial bail system does this better, and does so at no additional cost to taxpayers. Former U.S. Atty. Gen. William P. Barr credits commercial bail agents with the recovery of approximately 35,000 fugitives per year, explaining, “Without their efforts, these fugitives would either remain at large, or significant state and local police resources would need to be diverted from other law enforcement activities to secure their capture.”48
Pursuing bail-jumping warrants typically falls to the county sheriff’s departments in Wisconsin.49 While each county has its own policies as to the time and resources it can divert to the task, based on available CCAP data, it is safe to say that staying on top of warrants is a losing battle in any county. In addition to the 979 outstanding warrants issued for felony defendants in Wisconsin in 2012, there are tens of thousands of criminal misdemeanor and criminal traffic cases with outstanding warrants issued in Wisconsin.50 It is estimated that there are 22,000 fugitives in Milwaukee alone.51 These figures are particularly concerning in light of evidence suggesting that defendants who fail to appear for court have an increased likelihood of committing further crime.52
Commercial bail agencies have both the time and the resources for recovery of “skips” built into their business models, in comparison with the ever-strained resources of law enforcement, which generally has higher priorities to attend to. Given the high numbers of outstanding arrest warrants, law enforcement cannot pursue outstanding warrants with the same vigor as commercial bail agents with a financial interest in conducting investigative steps toward the recovery of defendants who fail to appear.53
Additional Financial Considerations
The purpose of bail is not to generate revenue for the state or counties. However, in the dialogue surrounding the reintroduction of commercial bail in Wisconsin, there has been concern that such amendments to legislation would send too much money out of the state and usurp the ability of individual counties to control and benefit from bail deposits. It is for this reason that the issue of revenue potential is examined here.
One of the advantages of commercial bail is that it works as an insurance policy for the state. While statistics suggest that the failure-to-appear rate in Wisconsin would be lower for defendants released with commercial bail, when a forfeiture judgment did occur, the full amount of the bond would be forfeited by a solvent surety. It would then be up to the bail agent, not the state or the county, to attempt to collect the amount from the defendant. The requirement to produce forfeited bail is enforceable against commercial bail companies in their role as entities certified by the state. If a bond company refuses, in any way, to play by the rules, its license could simply be revoked.
In contrast, data obtained from the Milwaukee County Clerk of Courts in 2012 show that while it was known that 733 forfeiture actions were ordered over the course of a year, 85 of these actions resulted in hearings, and the actual number of forfeitures that occurred is unknown.54
While certainly some portion of the profits generated by commercial bail in Wisconsin would leave the state, mainly in the form of service fees to surety companies, this risk has been overstated. Bail agents would pay licensing fees to the state of Wisconsin and would register as business entities with the Department of Financial Institutions. Commercial bail agents and their employees would largely be residents of Wisconsin.
According to a summary of commercial bail bond law published by the American Bar Association, of the fee paid by the defendant, the commission retained by the local bail agent is significantly larger than the commission due to the bail insurance agency.55 These facts create a scenario under which most of the money generated by commercial bail would stay in Wisconsin. Commercial bail also has some amount of potential to generate revenue for the state through annual licensing fees and premium taxes on the surety bonds that are written.
Reinstatement of Commercial Bail in Philadelphia
The 1st Judicial District of Pennsylvania, which governs Philadelphia, made the decision to prohibit the use of commercial bail within its jurisdiction in the 1970s in response to a system that had become corrupt. As in Wisconsin, the courts in Philadelphia became solely responsible for the management of defendants pretrial. However, pressure to reinstate commercial bail in Philadelphia grew as a result of “widespread dissatisfaction with the performance of the court’s system.”
Approximately 19,000 defendants failed to appear each year, and forfeited bail went largely uncollected to the tune of an estimated $1 billion.
Advisory committee members of the initiative to improve Philadelphia’s pretrial system noted that national fugitive rates are 30 percent higher in jurisdictions that rely on deposit bail. The failure of the pretrial system in their own courts and indications of the usefulness of commercial bail elsewhere led to the launch of a pilot program to reintroduce commercial bail in Philadelphia under strict requirements for surety companies in 2009. In April of 2012, an order was issued to relax entry requirements for bail surety companies and effectively reinstate the use of commercial bail.57
The implementation of commercial bail in the 1st Judicial District of Pennsylvania is worthy of review, as the practice was reintroduced through a measured decision-making process. The licensure of bail sureties is dependent upon the maintenance of a deposit account with the court to assure sufficient collateral on the bonds the surety is authorized to write. The licensure rules have carefully balanced the interest of ensuring that a surety company will be penalized for failure to operate responsibly with the interest of allowing the company to do business and make a reasonable profit. Both sureties and bail agents supported by these sureties are required to be registered with the State of Pennsylvania.57
Regulation of the Philadelphia commercial bail industry is achieved through a simple set of principles, including the reliance on clear, bright-line rules, and diligent and equal enforcement of statutes, rules and protocols. The regulatory guidelines similarly inform the bail agent what they can expect from the court, such as notification of appearances required by defendants, and the procedures surrounding failures to appear and forfeitures.
The debate between advocates of financial versus nonfinancial release still continues in Philadelphia. However, even the proponents of nonfinancial options concede that monetary and commercial bail will continue to play a prominent role in the criminal justice system as long as the availability of funding for pretrial programs remains a concern. While nonmonetary bail may be the best option in some situations, such cases are limited by the amount of time and resources available to the courts to administer the pretrial programs necessary for success.
Commercial Bail Within the Existing Wisconsin Framework
Providing Courts with Options
Statistical data demonstrate the efficacy of commercial bail, and the Department of Justice analysis of state court data has documented the trending popularity of its use nationally. Re-introducing commercial bail in Wisconsin would provide judges with wider flexibility in pretrial release options that could further the goal of ensuring defendant appearance at no additional cost to taxpayers.
Wisconsin judges currently have a variety of options available to ensure appearance of defendants, from financial and nonfinancial terms of pretrial release, to the imposition of restrictions on residence, travel, association and other activities. However, there is room for improvement, and allowing for the re-introduction of commercial bail would provide further alternatives.
The broad range of practices across the United States proves that there is no one-size-fits-all solution to pretrial release decision-making. Commercial bail is utilized in almost every state in the country, suggesting that even in areas where the practice of financial bail is not heavily favored, there is value in providing it as an alternative tool. Just as criminal justice experts widely accept that there is no single solution to prisoner treatment and rehabilitation, so does this assertion apply to pretrial decision-making.
The reintroduction of commercial bail in Philadelphia is particularly instructive. While the decision was originally made to prohibit commercial bail within the jurisdiction, it was ultimately decided that commercial bail could provide a useful alternative within its existing ineffective pretrial release system, and fortunately the state laws of Pennsylvania provided for this option. Because the jurisdiction was reintroducing commercial bail with a clean slate, it was able to design licensure requirements and regulations to integrate commercial bail in a manner most likely to reduce failure to appear and promote the public interest.
The introduction of commercial sureties could be integrated into Wisconsin’s existing framework for the handling of bail forfeitures. According to the Legislative Fiscal Bureau, forfeited sureties and cash deposits on bond in Wisconsin are first applied toward any court-ordered victim recompense, then to court costs, and then are paid over to the county treasurer. While concern regarding control over forfeitures may arise, it should be kept in mind that to view bail forfeitures as a means of generating revenue for counties is “a complete departure from bail’s fundamental purpose.” The purpose of bond is to ensure the appearance of the defendant at court, and this should remain the primary focus.
As with any alteration to the criminal justice process, changes to pretrial release should be carefully implemented with an eye toward accountability. Feedback should be solicited from clerks of court to discern ways to improve data tracking, given the inconsistent nature of data available from county to county.
Legislation to reintroduce commercial bail should be drafted to encourage development of a commercial bail industry that is invested in Wisconsin. Licensure conditions must establish strict rules and compliance requirements for bail insurance companies and bail agents. Further considerations such as periodic license renewals and continued learning requirements for bail agents have been cited elsewhere for promoting professionalism within the industry.
Critics of commercial bail suggest that while the idea of commercial bail might sound good, in practice the regulation of surety forfeitures is lax, removing the incentive for bail agents to further the goal of public safety, thus causing the entire system to be flawed. Carefully considered regulation and oversight mechanisms would eliminate this concern. Wisconsin can look to the experience and weaknesses that may exist in commercial bail systems elsewhere to glean valuable insights for the reintroduction process. Perhaps one of the greatest advantages in Wisconsin is that, because the state would be starting from scratch, it has the potential to incorporate commercial bail in a measured and careful manner, consistent with the goals of the public and the criminal justice system.
Integration with Pretrial Assessments and Services
Throughout the criminal justice system, there is broad support of experts for the use of evidence-based assessments to determine the best options for dealing with defendants and offenders. The re-introduction of commercial bail in Wisconsin will not change the types of issues courts must consider in evaluating the amount of bail and conditions of release. Courts will continue to weigh such factors as the nature and seriousness of the charges; the weight of the evidence; the defendant’s character, family and community ties, flight risk, mental and physical condition, criminal history, and drug and alcohol involvement; and the danger posed to witnesses and the community.
Some critics of commercial bail argue that the industry is at odds with pretrial services, programs that help the courts determine the appropriate type of pretrial release and that assist in cases such as indigence and mental illness. However, there need not be conflict between commercial bail and pretrial services, particularly where pretrial services provide broad options through community-based partnerships. In such cases, the re-introduction of alternatives complements the idea that different circumstances require different solutions.
Commercial bail is a valuable option when coupled with evidence-based assessments regarding pretrial release decisions and conditions. In fact, commercial bail agents can be useful in monitoring compliance with pretrial services and conditions. Monitoring a defendant for compliance with imposed conditions is one important way that commercial bail agents control their risk.
Pretrial Release Tracking and Analysis
In part because pretrial release is an area in which judges may exercise great discretion in setting amounts and determining whether forfeiture is appropriate, it is an area with much room for improvement in terms of tracking. In order for pretrial assessments to be “evidence-based,” there must be a solid system in place for the ongoing tracking and analyzing of data to determine what options work best under varied circumstances. The 1964 report to the National Conference on Bail and Criminal Justice cited the basic defect of the pretrial release system as “its lack of facts.” This same warning must necessarily be heeded today as Wisconsin continues to move its criminal justice system forward and develop better methods of pretrial release.
Because the process for handling and recording statistics on pretrial release varies by county, there is currently no available statewide information on the posting of bail, and information that might be discerned from individual clerks of court is not standardized. According to the Legislative Fiscal Bureau, “Information regarding average bail amounts, average bail forfeited, the statewide amount forfeited, the number of individuals posting bail or failing to appear after posting bail, and the rate at which individuals are located who fail to appear is not uniformly recorded or centrally reported.”
Conversely, the commercial bail industry naturally falls in line with the goal of effective data tracking. Bail agents and surety companies generally keep records as a function of operating within an industry that it must have a successful result at least 95 percent of the time in order to stay in business. However, beyond the business motivations for keeping records, commercial bail agents and surety companies are further often required to do so as a matter of licensure and regulation.
If Wisconsin had the ability to conduct meaningful tracking of pretrial release data and outcomes, judges could better tailor the pretrial release options to each set of circumstances. It is only through data tracking and analysis that Wisconsin can expect to offer evidence-based solutions for pretrial release.
By establishing methods to track pretrial release outcomes and providing the system with the tool of commercial bail, Wisconsin could take great strides toward minimizing the risk of flight, which comes at great cost both financially and in terms of public safety.
Thomas H. Cohen and Brian A. Reaves, “Pretrial Release of Felony Defendants in State Courts,” Bureau of Justice Statistics (November 2007), 1. Study based on state court data collected between 1990 and 2004.
Eric Helland and Alexander Tabarrok, Alexander, “The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping,” Journal of Law and Economics, Vol. XLVII (April 2004)), 93-94.
Eric Helland and Alexander Tabarrok, “The Fugitive: Evidence on Public Versus Private Law Enforcement From Bail Jumping,” Journal of Law and Economics, Vol. XLVII (April 2004), 93-94.
Steven J. Semmann, “Three Critical Sentencing Elements Reduce Recidivism: A Comparison Between Robbers and Other Offenders,” Wisconsin Sentencing Commission (2006), 10-11.
Pennsylvania Joint State Government Commission, “Report of the Advisory Committee on the Criminal Justice System in Philadelphia” (January 2013), 20.
Data provided by Court Data Technologies, LLC, based on a Dec.12, 2012, search of the Wisconsin Circuit Court System, “Consolidated Court Automation Programs” (CCAP). These data are complete only to the extent that they are available through CCAP and are limited to the extent that several counties joined the system after 1999. Note that a single individual could have multiple warrants.
D.J. Freed, “Bail in the United States: 1964, A Report to the National Conference on Bail and Criminal Justice,” Washington, D.C. (May 27-29, 1964), 8.
Donna Makowiecki, “U.S. Pretrial Services: A Place in History,” Federal Probation, Vol. 76, Issue 2 (September 2012), 10-11.
Chris Carmichael, memo from Legislative Fiscal Bureau to Rep. Robin Vos (Oct. 19, 2012), 1.
Based on State Court Processing Statistics data from the 75 largest counties in the country between 1990 and 2004.
Adam Liptak, “Illegal Globally, Bail for Profit Remains in U.S.,” The New York Times (Jan. 29, 2008), 3.
Brendan Fischer, “Budget could bring bail bondsmen, bounty hunters back to Wisconsin,” The Capital Times (June 15, 2011), 3.
Pennsylvania Joint State Government Commission, 41.
Written Testimony of the American Bail Coalition Concerning AB-567 to the Assembly Committee on Homeland Security and State Affairs (March 7, 2012), 7.
Stephanie Jones, “Bail bondsmen: In the business of making sure people make court dates,” The Journal Times (June 9, 2011), 2.
ABA Standards for Pretrial Release, note 12 at 10-87 cited by James G. Carr, “Bail Bondsmen and the Federal Courts,” (Federal Probation, Vol. 56, Issue 1, March 1993), 7.
Carr, 4, citing to Comment, “Bail and Bail Bondsmen: Need for Reform in Kentucky,” 61 Ky. L.J. 601 (1973).
Helland, 97, 113.
Testimony of the American Bail Coalition Concerning AB-5.
Robert G. Morris, “Pretrial Release Mechanisms in Dallas County, Texas: Differences in Failure to Appear, Recidivism/Pretrial Misconduct, and Associated Costs of FTA,” The University of Texas at Dallas (2013), 2-3.
Adapted from the Multi-Treatment Propensity Score Matching Results on Failure to Appear: Attorney, Cash, and Pretrial Bonds as Compared to Commercial Bonds, table at Morris, 10.
The American Bail Coalition, 4.
Morris, 3, 17-19.
The American Bail Coalition, 3, citing William P. Barr, Letter to Congressman Charles Canady, 2000.
Data provided by Court Data Technologies, LLC, based on a Dec. 21, 2012, search of the Wisconsin Circuit Court System “Consolidated Court Automation Programs” (CCAP). These data are complete only to the extent that they are available through CCAP and are limited to the extent that several counties joined the system after 1999.
Dennis Bartlett, “The War on Public Safety: A Critical Analysis of The Justice Policy Institute’s Proposals for Bail Reform,” American Bail Coalition, 8.
Pennsylvania Joint State Government Commission, 20-27.
Pennsylvania Joint State Government Commission, 47-52.
Pennsylvania Joint State Government Commission, 39-40.
Kennedy, Spurgeon, “Commercial Surety Bail: Assessing Its Role in the Pretrial Release and Detention Decision” (November 1996), 8-9.