Saturday, May 14, 2011

Bail bond industry seeks to retain monopoly

A bill tying judges and counties hands on the cheapest way to handle low-level bail bonds has cleared the Senate and already received a hearing in the House, putting at risk successful systems used in multiple jurisdictions. Tuesday, the House Criminal Jurisprudence Committee heard SB 878 which would disallow courts from accepting cash bonds less than the full amount pending pretrial release. In other words, the bail bond industry wants a monopoly. They want to force people to choose between coming up with the full amount in cash or paying 10-15% to a bail bondsman that they'll never see again. I happened to be in the committee hearing when this was heard and thought it was a terrible bill; having now read it, I'm convinced that's the case.

And I'm not the only one who isn't convinced. A Harris County ADA testified against the bill on the Senate side, countered by a slew of bail bondsmen. On the House side, only the criminal defense bar spoke in opposition.  Perhaps most notably, Carol Oeller of the Harris County Pretrial Services Division wrote to the House Criminal Jurisprudence Committee, in relevant part:
I am opposed to SB878 which had a hearing this morning before the House Criminal Jurisprudence Committee.

However, I did not testify against the bill as I understood Senator Whitmire and Representative Madden had agreed on a  committee substitute whereby Section 2 of the bill would be removed.  Section 2 was my main area of concern, although in its entirety I believe the bill begins to codify a monopoly for the bail bonding industry at the expense of judicial discretion, public safety, and local jurisdictions’ fiscal stability.  I am writing to you now in case the committee substitute that minimizes this impact succumbs to the frenzy accompanying the waning days of session, and the committee considers passage of the bill as filed.

Regarding fiscal stability, jurisdictions employing the practices that Section 1 of the bill proscribes – accepting a partial amount of the bail required, will lose flexibility to manage some costs associated with a criminal case, such as those associated with incarceration or appointed counsel.  Considering the budget issues the State and local jurisdictions are facing, institutionalizing, rather than banning  this type of system would be more supportive of local justice system operations.

Excising Section 2 from the  bill at least will preserve some judicial options to construct release conditions that are appropriate to an individual defendant’s risk for pretrial misconduct.  Conversely, its passage will eviscerate judicial discretion and impede jurisdictions’ abilities to employ evidence based practices; it will do nothing to advance system effectiveness while simultaneously imparting financial burdens.
With respect to Oeller, even eliminating Section 2 wouldn't make the bill okay by me; the whole thing is a bad idea. Judges in several jurisdictions including Travis County allow partial bail despite a much-disputed Attorney General's opinion to the contrary. The process works fine here and elsewhere, according to testimony in committee. SB 878 would conform state law to the AG's opinion, but why not go the other direction and maximize local control? The jails are too full of pretrial defendants, why not let counties try this method if it works better ? I won't be unhappy if this bill never gets a vote in House Criminal Jurisprudence, or dies a lonely death in the House Calendars Committee.

11 comments:

Robert Langham said...

Another innocent man spending his life in jail while the real criminal goes free? Prosecutors ruined the life....of the WRONG person?

Can't anybody here PLAY this game?

Anonymous said...

Harris County is a big money machine, with the bonding companies siphoning the cash off along the way.
There must be some good in this bill if Harris County is against it.

Thomas Hobbes said...

Interesting side note related to the notion of a monopoly . . .

In that same meeting this week, a Committee member wondered aloud whether there would be a problem if he had to make a $5,000 bond, but had only $4,500 in cash. Couldn't he simply post the $4,500 in cash and get a surety bond from a bondsman to cover the additional $500? A representative from the Professional Bondsmen of Texas told the member that he could not, as the Attorney General had issued an opinion that such a "split bond" was at variance with state statutes.

However, the Attorney General has issued no such opinion and it does not appear that such a question has been asked. References to split bonds focus on requiring a bond that is part personal bond and part financial, whether cash or surety. Beyond that, the AG opinions indicate only that a magistrate cannot specify that a defendant post either a cash or surety bond to the exclusion of the other, but they do not address posting of a bond that is part cash and part surety if the bond is posted in the full amount and that is what the defendant chooses to do.

Obviously, it is in the bail industry's interest to minimize the use of cash bonds and personal bonds.

Anonymous said...

Just use the Personal Bond provisions of the Texas CCP and cut the bail bonding companies out.

Problem solved!

Anonymous said...

In January, 2010, NPR's All Things Condidered presented a three-part series on Bail Bonding business. Among many salient points made was the point that the lobby for the bail bond industry is well-organized and quite effective. However, if this bill passes, it will be the taxpayers who suffer - more crowding of indigent inmates in jail, more absconders to be rounded up by law enforcement Fugative Units, and no way for Counties to control these costs.
Thank you Grits for alerting us to this pending legislation!

A Texas PO said...

I agree with Anon 7:45, except for one problem: who is going to monitor all those PR bonds and make sure they appear in court?

CJAD recently notified CSCDs that bond supervision, though it had never been funded, will no longer be allowed using basic supervision funding from TDCJ. This means that CSCDs in counties that don't have pre-trial release programs independent of the CSCD are having to figure out ways to maintain the supervision demanded by the courts without violating funding rules with CJAD. Some counties have the money to create these pre-trial programs, but others are just as strapped as the state.

But getting rid of the cash bond option seems ridiculous. I don't know many people who just have $10,000 lying around. Except maybe Rick Perry and the state legislators.

Clyde Report said...

I have to say that I very much disagree with your statement of the facts and your statement regarding the affect of this bill. On the facts, you stated that an assistant district attorney testified against the bill in the Senate. However, the very own link that you provide demonstrates that she did not testify at all. She signed a card opposing the bill, but did not testify. That sure does not seem to support your statement that she testified against the bill on the Senate side.

On the substance, you are also incorrect. This bill does not create a monopoly at all. In fact, the bill only clarifies existing law set out not only in several attorney general opinions, but also several cases as well. You seem to be arguing against current law. You should state it expressly instead of saying that the private sector bondsmen are attempting to create a monopoly. This is simply not a true statement. Current law authorizes three types of bonds: private surety, cash or public surety (personal bond). The trial court sets the amount of the bond and then the defendant decides which type to use. A monopoly would be when the only option would be a private bail bond. That is not the current system and this does not change that.

On the merits, you seem to belittle an attorney general's opinion when the current interpretation of the two statutes is based on much more than an attonrey general's opinion. It is based upon the plain wording of the two statutes and others. A personal bond is a bond without surety. Cash is a surety. Using part cash and personal bond is a differential bond which has been rejected by several courts of appeal. Further, statutes set out the fees that may be charged on a personal bond. Charging in addition to that would seem to violate that statute. Also, there are several (not just one) attorney general opinions which reject this practice.

So before you reflexively attack private bondsmen for attempting to create a monopoly you need to check the very facts that you are citing and the law.

In addition, not one case, attorney general's opinion or statute has been cited to say that the practice that is currently taking place (in violation of the law) is in the least bit proper. This speaks volumns to me.

Anonymous said...

No one testified against the bill in the Senate. In the House, there was a Criminal Defense attorney from Travis County and someone from some policy group stating that the head of the Harris County Pretrial Services Department opposed the bill because it might prevent her from confiscating passports. This was a silly argument since the amendment only discusses a financial condition and a passport is not a financial condition.

It seems to me that you do not like existing law. We are supposed to be a society governed by laws. If this is the law and it appears to me that it is the unquestioned law right now, then I have to ask why is it that we have to codify the existing law to get some counties to follow it. I can see why the bill was proposed.

Finally, I would say in the face of all of this authority as to existing law and several counties ignoring it, I suspect that they will just ignore this too and continue doing what they want ignoring the law. We should not even be debating this. The debate should be on their proposed bill to change the law, but since they have ignored it anyway why would they not ignore this too? Of course, we forget that they took an oath to uphold the law when they took office.

Anonymous said...

@ Texas PO..I agree with Anon 7:45, except for one problem: who is going to monitor all those PR bonds and make sure they appear in court?

There is provison in the Texas CCP for the creation of a personal bond office. There is no legal reason that I know of from preventing the sheriff of each county to house that office within the confines of the sheriff's office.

Soronel Haetir said...

Grits,

I recall a post you had awhile back where it was pointed out that bondsmen are getting people out but that they aren't actually depositing the security with the court. And those courts then in many cases aren't even trying to collect when defendants skip. I would think a requirement that the full amount of the bond be deposited only makes sense and is entirely seperate from the matter of what the amount of that bond should be.

ckikerintulia said...

A few years back I was the "courier"--for want of a better word--for the 10% payment for a relatively small bail. Since I was the one who delivered the cash, I was also the one to sign the papers. The papers stated that in the event the defendnant absconded, I would be responsible for the amount of the bail. I was pretty sure the defendant would not go on the lam, so I signed anyway. But I did sleep better after the matter was resolved.

The point is, the bail company was at zero risk in this case. They got their money, and I would be left holding the bag if the defendant didn't show. Pretty sweet deal. No wonder they want a monopoly.