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Bail Bonds and the Common School Fund

Posted December 3, 2014 at 12:00 AM by Michael J. Whitlock under Deposit Bail  - 0 Comments

Speaker of the House Brian Bosma raised the issue of K-12 education during his opening address last week for the upcoming session of the Indiana Legislature. School funding and consolidation are at issue.  Not surprisingly, there are only few people who realize increasing the using of bail bonds can have a direct impact on revenue deposited to the Common School Fund.

For those that are not aware, when someone is arrested in Indiana for a non-capital offense they are entitled bail.  In order to obtain release from jail a defendant can meet the bail obligation by posting full cash, real estate or a bail bond.  There is a fourth option; a judge can permit a defendant to post just 10 percent of bail amount in cash with no security required for the remaining 90 percent of the bail.   This is known as the "10 percent cash option" or as I like to call it, "the 90 percent discount."

Of all the bail options only the 10 percent cash option does not benefit the Common School Fund should a defendant fail to appear.  Interestingly, it has been the expanded use by Indiana courts of the 10 percent cash option that has derailed the revenue source Common School Fund derives from forfeited bail bonds and these courts have been very successful in keeping this quite.

The Common School fund was created by Article 8, Section 2 of the Indiana Constitution. The Common School Fund receives revenue, in part, from civil forfeitures; this includes forfeited bail bonds.  Bail agents who are unsuccessful in returning their client to court within the allotted time after an FTA must pay the entire bond amount if ordered by the court. Once paid, the forfeited portion equal to 20 percent of the bond is payable to the Indiana's Common School Fund.

Regrettably, most of Indiana's major cities (Evansville, Columbus, Gary, South Bend, W. Lafayette and Indianapolis) have moved to a the 10 percent cash option where criminal offenders pay just 10 percent of the bail amount ($1000 on a $10,000 bail) in cash to the court to obtain release from jail. The remaining 90% of the bail amount is unsecured.

When a criminal offender fails to appear for court the local court keeps the 10 percent cash deposit, the remaining 90% of the bail goes uncollected and the Indiana Common School Fund receives nothing. The County Extradition Fund and the Police Pension Fund are also deprived of funding.  With 10 percent cash bail, only the court benefit. This is by design.

A 2008 article posted on NewsandTribune.com said $5.3 million was collected in cash bail deposits by 31 Indiana Counties. The article went on to say 47 percent or $2.4 million was retained by the court.  If this sounds like a lot of money it is....for the court. Keep in mind this figure is only 10 percent of the 53 million that should have been collected had full security of the bonds been required by the court.

According to a 2007 study by the Department of Justice Bureau of Justice Statistics that reviewed felony releases in the country's 75 largest counties over a 14 year period, 30 percent of defendant's released on cash bonds failed to appear for court. The same report said defendant's released on a bail bond failed to show for court just 18 percent of the time. The added benefit of a bail bond is the bail agent has an incentive and the resources to bring a fugitive back to custody whereas most county law enforcement agencies do not, so most of those 18 percent who fail to appear are eventually apprehended and returned to custody at no cost to taxpayers.

So here we have a situation controlled by the court. They should require the bail be secured by cash equal to 100 percent of the bail or a bail bond that carries a financial guarantee provided by a surety company.  Instead they say, "give us our 10 percent and the rest of you can fend for yourself." Gee, thanks.

The courts seemed to have forgotten the purpose of bail, to guarantee a defendant appears in court, not to secure the payment of fines and costs.  In their euphoric state of increased financial gains, they forget that someone has to locate and return those defendants who fail to appear for court.  Neglecting to do so has created a fugitive nightmare in this this state the courts would prefer did not become public. There are more than 100,000 outstanding warrants throughout Indiana; Marion County accounts for more than 35,000 outstanding warrants alone.  It's a problem.

Bail agents have a financial incentive to return fugitives to court. If they don't they must pay the bond, a portion of which goes to the Common School Fund.  Indiana courts using the 10 percent cash option have no such incentive and feel no obligation to clean up the mess they created.  They keep the cash which has become their overriding concern.

The Indiana House led by Speaker Bosma, will be looking at Indiana's bail system during the upcoming session.  Positive changes to the law in Indiana could reduce the self-serving 10 percent cash option in favor of an increased use of private sector bail bonds which will have an immediate impact on decreasing the failure to appear rate and generate much needed revenue for the Common School Fund. 

Indiana's Deposit Bail System Makes the News

Posted September 9, 2013 at 12:00 AM by Michael J. Whitlock, Executive Vice President under Deposit Bail  - 0 Comments

It was June 2011 when bail agents from around the State of Indiana answered the call to have a "Qualification Day" (watch video) in South Bend to register with the St. Joseph County clerk to write bail in that county.

While this event was well attended it was largely symbolic.  St. Joseph County has not accepted a bail bond in more than 40 years. This northern Indiana county is notorious in our state for monopolizing the bail system with their 90% discount bonds. This cash bonds are purely intended to secure a defendant's payment of fines and costs and not to secure their appearance in court. 

ABC57 News South Bend has picked up this story and earlier this week reporter Meghan Schiller filed her first of what is to be many reports on the current bail system in St. Joseph County (Click here to watch the ABC57 News Report).  After you view this report please click "Like" to show support for this news agency's continued investigation into what is clearly a failed system

As reported here in a previous post, the Indiana State Legislature's Commission on Courts is currently reviewing Indiana's bail system during its Summer Study Committee.  A lot of focus has been placed on the Ten Percent cash bond option preferred by many counties in Indiana.  Ten Percent, also known as the 90% Discount Bond comes with a number of repercussions on public safety, victims of crime and short changing the Indiana Common School Fund.  A high failure to appear rate has become the accepted norm in St. Joseph County and counties with similar programs.

The deposit bond system in St. Joseph County is also not fair to those arrested and trying to make bond. This county's ten percent cash bonds are many times higher than are bonds with similar charges in Ft. Wayne and Indianapolis.

St. Joseph County Prosecutor Michael Dvorak makes claim in the ABC57 News report, the deposit bond system is just as good as the bail bond system.  Mr. Dvorak has no foundation on which to make this claim as St. Joseph County has not accepted a bail bond at its jail in several decades.

St. Joseph County has two deputies serving in the warrant division.  How are two deputies able to service 5000 plus warrants with new warrants coming in everyday?  We hope to learn answers to this question and many more in the coming weeks.  Stay tuned.

Watch ABC News Report 

Watch Report from South Bend Qualification Day 

Listen to Bail System Testimony before Commission on Courts (Click 7/18 View)

Hoosier Bail Agents Meet in Northern Indiana

Posted May 21, 2013 at 12:00 AM by Michael J. Whitlock, Executive Vice President under Deposit Bail, Legislation, and Meeting Recaps  - 6 Comments

Michigan City, Indiana – Hoosier bail agents gathered in northern Indiana this past Saturday for the ISBAA’s annual spring meeting.  The meeting was held at the Blue Chip Casino and included six hours of continuing education.  All bail and recovery agents will need to obtain the required continuing education credits prior to license renewal this fall.















This meeting was anticipated with a particular buzz of excitement, resulting in one of the larger turnouts in recent memory.  Bail agents in Indiana are genuinely concerned about their future.   The amount of bail written in Indiana has been reduced by more than 70% in just eight years.  This sizable reduction can be attributed not to a reduction in crime, but rather an increase in the use of the ten percent cash option offered by the court.

As I reported earlier this year, Tippecanoe County is the latest casualty.  With just sixty days notice, this area, home to Purdue University, instituted a new bond schedule that included a ten percent cash option on all bonds $5000 and under.  The bail agents in Tippecanoe reported an instantaneous reduction in business by as much as ninety-eight percent.

This meeting included a two-hour panel discussion on the concept of repealing Indiana’s no-credit law and other ideas that could bring about positive change to public safety in Indiana and, by extension, the commercial bail industry.  I was a member of the pane, which included Lee Sexton, Bob Dawson, Tony Widgery, John O’Byron and Josh Stroufe.  The panel was moderated by Nick Wachinski.

The panel discussion was cordial for the most part and heated at times.  Bail agents in Indiana are very passionate about their profession.   With current law requiring premiums to be paid in full prior to posting a bond, Hoosier bail agents are simply not familiar with the concept of payment plans.  Many are slow to embrace the idea of credit bonding even though extending a payment option to their clients may be the very thing that can save their profession long-term.

Indiana statute allows a court to offer a defendant a cash bond option of up to 100% of the bond amount and not less than ten percent.  Court and county officials are no fools.  Their goal is to simply use cash bail money to pay fines, costs and public and private attorneys.  From the beginning, the courts viewed bail agents as a competitor and treated them as such.  It was for this reason they cleverly set their cash deposit requirement at an amount equal to the premium charged by bail agents.  Defendants would readily pay the court ten percent with no strings as opposed to a bail agent who has a host of conditions and requirements to ensure appearance, including a financial incentive to apprehend them, should they fail to show for court.

As a member of the panel I did my best to paint an accurate picture of the current state of commercial bail in Indiana and make the argument that at this time in our state’s history, repealing Indiana’s no-credit statute and permitting a defendant to always have the option to post a bond is the answer to our problem.  Making these changes would allow a bail agent to write bail in every county in the state.  Facilitating this would be extending the option to a criminal defendant to pay their premium in installments, as they are able to do with a myriad of other products and services.   Payment plans in no way lessens the surety’s guarantee of the full bond amount.

Effort to Repeal No-Credit Fails

Posted March 29, 2013 at 12:00 AM by Michael J. Whitlock, Executive Vice President under Deposit Bail, and Legislation  - 13 Comments

Indianapolis, IN - An effort to repeal Indiana’s no-credit law on bail premiums failed yesterday.  Amendment HB1006 #30 was offered by Senator Steele during the Senate Judiciary Committee.  Senator Steele is a longtime supporter of commercial bail and public safety issues.  The president of the Indiana Surety Agents Association testified in opposition to the amendment, specifically that portion dealing with the repeal of no-credit on bond premium.  As a result, the amendment failed to pass.

The proposed amendment did two things. Number one, it repealed the no-credit law allowing bail agents to accept payment terms on the premium.  Current Indiana law requires bail agents to collect the entire premium prior to posting a bond.  Number two; it is the defendant’s choice to post a full cash bond or a bail bond.  Current law could be interpreted to say a judge can set a ten percent cash deposit bond to the exclusion of all other options.

This legislative effort was initiated by American Surety Company and we are very proud of this fact.  American Surety Company is the only bail surety company domiciled in Indiana regulated by the Indiana Department of Insurance.  Indiana is our home court.  We feel obliged to act in the best interest of all bail agents in this state.  After years of watching other initiatives fail, we believed it was time to slaughter the sacred cow, that being no-credit.

We sought support from other surety companies doing business in Indiana.  The majority supported.  We invited our agents to our office to discuss our proposals.  The majority supported.  We believe the American Surety agents we spoke with were a fair sampling of all Indiana agents.  We calculated most bail agents in this state would recognize the need for repealing this antiquated law and the value of a law that would allow a defendant to opt for the type of bond they wish to post.

Indiana is the last remaining state to not allow payment terms.  Some Indiana bail agents wear no-credit as a badge of honor.  In actuality, no-credit is more like a pair of handcuffs that prevent bail agents from competing against deposit bail.

Of the 92 counties in Indiana, at least 37 have rooted out bail agents with deposit bail.  The rest of the counties in the state offer a deposit bond option and some percentage of surety bail.  Bail agents are at a major disadvantage because they cannot compete with the ten percent cash option, not if they must collect the full bond premium prior to posting a bond.

Criminal defendants seeking release from jail will continue to select the path of least resistance, deposit bail.  Why would a defendant pay a bond premium and put himself at the mercy of a bail agent and release conditions when they could simply deposit the same ten percent to the court with no conditions?

If a bail agent was able to provide a defendant with payment terms, a number of defendants would start opting for a bail bond.  Why, because it would be the easier path.  Defendants and their family do not always have the money to cover the full ten percent without options they sit in jail.  A lot of people need payment terms, a simple fact.

We firmly believe a bail agent having the legal authority to offer payment terms to their clients and the defendant having the option to post a bail bond is the only way to compete with the ten percent option and reclaim market share in those counties where ten percent is an option and those counties where it’s the only option.

The inability to pass Amendment # 30 was a critical opportunity lost.  Bail agents would finally have something to look forward to rather than count down the days to their industry’s demise.  American Surety Company will continue to use knowledge and common sense in our fight on behalf of bail agents and the preservation of the bail industry.  If you are a member of the ISBAA I urge you to make your position known to them on the concept of repealing the no-credit law.

Put me in Coach!

Posted April 16, 2012 at 12:00 AM by Michael J. Whitlock,MCBA Executive Vice President under Bail Bond Insurance, and Deposit Bail  - 1 Comment

Philly court taps the bail agent to help with appearance rate
It has been three years since a series of articles ran in the Philadelphia Inquirer shining a spotlight on Philadelphia's broken bail system.  The expose cited one billion dollars of uncollected forfeited bail, nearly 50,000 long term bench warrants for failure to appear, witness intimidation and a criminal justice system bearing no teeth and largely ignored by criminal offenders.
Earlier this month, the First Judicial District of Pennsylvania, Administrative Governing Board, released Administrative Order No. 01 of 2012. The Administrative Order acknowledged a historical failure to appear rate of 30% among criminal defendants with cases in the Court of Common Pleas and Municipal Court and more than 60,000 outstanding warrants for failure to appear overall.  These are just a few elements that underscore the ineffectiveness of a one-size-fits-all Ten Percent Deposit Bail System and Taxpayer Funded Pretrial Release Program which had wandered beyond its original mandate, aiding the indigent criminal offender in obtaining release from jail, pretrial.
The reform and review period took nearly three years to complete and included countless hearings and meetings.  Participating in these meetings along with court and local officials were American Bail Coalition Executive Director Dennis Bartlett and Lexington National President, Brian Frank, an ABC member.  Dennis and Brian did an excellent job promoting the positive impact commercial bail would have on the chronic failure to appear problem in the City of Philadelphia.  The most glaring shortcoming in the decades old system of deposit bail and the public pretrial system has been the absence of accountability. There has been zero incentive for the program administrators to perform and no penalty for failing to control the failure to appear rate and collection of forfeited deposit bail.  Reinstating the use of commercial bail to the bond system in Philadelphia will have an immediate, substantial impact on the failure to appear rate and by extension a reduction in the number of outstanding bench warrants.
While additional work must be done to provide for a reasonable period of time to return fugitives (the law currently provides only 20 days), this is a great opportunity for the commercial bail industry to engage themselves in efforts to bring back a level of respect to the criminal justice system in the City of Philadelphia.
Thank you American Bail Coalition, specifically Dennis Bartlett and Brian Frank for their exhaustive efforts in bringing about positive change to the bail system of city of such historical significance.

Bail bonds hit airwaves in the Mile High City

Posted January 12, 2012 at 12:00 AM by Michael J. Whitlock, MCBA Executive Vice President under Deposit Bail, Legislation, and Meeting Recaps  - 0 Comments

While in the Mile High City last week, I met with some of our bail agents, attended a meeting of the Committee on Criminal and Juvenile Justice (CCJJ) to hear a presentation on bail bonds and made a guest appearance on "In the Lobby" on WKRP Radio to discuss the bail bond industry.
The Colorado Bail Industry has been hit pretty hard lately. Not only because of the poor economy, but also because some courts have stopped setting surety bonds in lieu of small cash bnods with no option of posting a bail bond.
You may recall my reporting on SB11-186 (Alternative Bond) last year. This bill would have created a percentage cash bond managed by the local public Pretrial Release Agency. After a lengthy legislative battle SB11-186 failed to pass. Look for a similar bill to be in the upcoming session.
The CCJJ was behind the effort to introduce the Alternative Bond and it was a representative of the CCJJ who was called to the carpet during a committee hearing for not inviting a representative of the bail industry to sit on their committee. The CCJJ took immediate steps to remedy this oversight by inviting current PBAC President and local bail agent Steve Mares to join their committee.
The CCJJ held a meeting January 6 in Lakewood, Colorado where Steve Mares and fellow bail agent, Jason Alexander, made a two-hour presentation on commercial bail bond procedures.  I attended the meeting as a spectator; only committee members were allowed to comment. 
Steve and Jason did an excellent job with their presentation. They took a number of questions from the other committee members. One in particular, is it true most defendants who FTA while out on bond are arrested by law enforcement? Steve did a great job dispelling this myth by explaining 1) bail agents will make every effort to reinstate a bond without surrendering a defendant if there was no intent on the defendant’s behalf to flee; and 2) many times when a bail agent is surrendering a defendant to the county jail the duty officer will not provide a body receipt opting instead to put themselves down as the arresting officer in order to receive credit for the arrest. With the officers taking credit for the arrests it creates a false impression that bail agents are not responsible for the recovery of their fugitives. Committee members seemed to grasp the explanation.
Before I made my trip I was invited by lobbyist Cork Kyle to be a guest on his daily radio show, "In the Lobby". I appeared on air last Wednesday and thoroughly enjoyed my first opportunity to do radio.  While nervous at first, I quickly got into the discussion, as I'm quite comfortable when I’m talking bail.    It was a friendly environment as Corky represents the Rocky Mountain Bail Agents Association and it was a good experience. (Listen to my radio interview).
All eyes will be on Colorado again this legislative session watching for another effort to pass Alternative Bond legislation. The Colorado bail industry will also be working with the legislature on the proposed Sunset revisions. The regulation of bail by the Colorado Department of Regulatory Agencies is up for renewal and there have been several recommendations made by The Bail Bond Advisory Committee established last year. I will keep you posted as the situation develops.

It’s a new year with new challenges. Together, as a cohesive unit, we continue to promote the effectiveness of commercial bail bonds as a critical component of the criminal justice system.

Click on the picture to listen to my radio interview.

Cash Deposit Bail a Classic Air Sandwich

Posted December 7, 2011 at 12:00 AM by Michael J. Whitlock, MCBA Executive Vice President under Deposit Bail  - 1 Comment

When I think about 10% deposit bail and I think about it often, I keep thinking how it’s a Rubik’s cube of logic that proponents use to justify its use to guarantee a criminal defendant’s appearance in court. Deposit bail (posting 10% of the bond in cash with the court with the remaining 90% unsecured) is really nothing more than an air sandwich being fed to the general public. A vacuous guarantee provided by the criminal offender himself, providing zero sustenance to victims and taxpaying citizens or the criminal justice system. Penn State assistant Coach Jerry Sandusky recently released on a 100% unsecured bond, not even a partial cash deposit; that was an air sandwich with cheese.
In our effort to prove the Air Sandwich Theory we have initiated an effort to gather information from counties throughout Indiana who have, for years, used deposit bail to the exclusion of all other forms of release, including and in particular, commercial bail bonds. Our request for listings of failure to appear warrants and an accounting of cash bail deposits have met with some resistance. 
Some counties have been cooperative in responding to our Freedom of Information Act requests (FOIA) while St. Joseph County (South Bend), a county who has exclusively used deposit bail for decades has been less than forthcoming with details. One would think a county utilizing one system of bail exclusively for forty years would have perfected their process over time. Apparently, that is not the case.
According to neighborhoodscout.com South Bend has a crime index of 4 making the home of Notre Dame University safer than just 4% of the cities in the US. Residents of South Bend have a 1 in 131 chance of being a victim of a violent crime and 1 in 15 chance of being a victim of a property crime. According to the 2004 FBI Crime Report, the overall crime index in South Bend at that time was worse than the national average in every category. It would appear little progress has been made in the years since.
I recently wrote to and spoke with the St. Joseph County Clerk. I was told they had no way of knowing, at any given time, how much money was being held in trust for cash bail deposits and her office could not provide and did not have a detailed listing of criminal defendants who currently had bail money on deposit. She went on to tell me they were using antiquated systems and the only way to know if a defendant had cash bail on deposit was to do a manual search using their public access computer.   
One has to ask the question, if you don’t know how much money is supposed to be in the cash bail trust account how do you know if the account balance is accurate? Who is responsible for reconciling this account? Who is responsible for these funds?
The FOIA request I sent to the St. Joseph County Warrants & Fugitive Division requesting a list of outstanding warrants, was met with the same obfuscation. While other counties in Indiana provide a list of their outstanding warrants on line, St. Joseph County claims no such list exists, at least not one they want to provide their employers,  the general public.
Undeterred, I was able to find a lengthy list of outstanding warrants for St. Joseph County at www.southbendareacrimestoppers.com. Not surprisingly there were a number of open warrants for failure to appear for court on charges ranging from battery, robbery and auto theft to weapons possession, forgery and habitual traffic offenses. Offenders, who at the discretion of the St. Joseph County judges or its sheriff were released from jail and back into society on a10% cash deposit, 90% free bond.
The residents of South Bend continue to be victimized by elected officials, appointed judges and law enforcement executives who have intentionally opted to use a minimum standard for guaranteeing a criminal defendant’s appearance in court. A fully secured bail bond remains the most effective option for ensuring a criminal defendant appears for court and justice and public safety is served, it’s no air sandwich.

"One Size Fits All" Policy Lacks Discretion When Setting Bond

Posted October 23, 2011 at 12:00 AM by Michael J. Whitlock, MCBA Executive Vice President under Deposit Bail  - 1 Comment

Discretionthe quality of having or showing discernment or good judgment. – Merriam- Webster Dictionary
An article was recently posted to the on-line issue of the Daily Report, a publication serving Greenfield, Indiana, which reported 95% of the bonds set by Judge Terry Snow were full cash bonds. Essentially, Judge Snow of Hancock County Superior Court 1 is ignoring the recent Indiana Supreme Court ruling in Sneed v. State where Indiana’s highest court ruled that a judge abused his discretion by not permitting a bail bond to be posted in lieu of cash.
The purpose of bail is to provide a guarantee of appearance by a criminal defendant at all required court appearances up to and including trial. In the State of Indiana bail bonds are executed by licensed bail agents and are financially backed by insurance companies approved by the Indiana Department of Insurance. In other words, according to the State of Indiana a financial guarantee provided by a bail bond is as good as cash.
Indiana Code 35-33-8-3.2 provides four options for secured release on bond pending trial. A cash deposit equal to the full amount of the bond, real estate with sufficient equity to cover the bond and a bail bond executed by a licensed bail agent. Additionally, the court can allow for the posting of just 10% of the bond in cash ($1000 cash on a $10,000 bond). A judge can also choose to release a defendant with no bond requirement.
Rule 1:1 of Indiana Code of Judicial Conduct states: A judge shall comply with the law,*including the Code of Judicial Conduct. Sneed v. State said, “…the trial court abused its discretion by requiring a cash only bail.” From the article posted to the Daily Report one could draw the conclusion Judge Snow is ignoring Sneed v. State by not allowing a bail bond to be posted in lieu of full cash. Rather than simply setting a bond which would guarantee appearance and then accepting a legal option for posting bond, Judge Snow appears to take a position which is punitive to the offender; cash only.
The position taken by Judge Snow appears to lack discretion as he, according to the article, is requiring full cash bonds for 95% of offenders that come before his court. This lack of discretion is not uncommon in some Indiana Courts. There are judges in counties like Johnson, Porter, St. Joseph and Vanderburgh who have elected to exclusively accept bonds in the form of a cash deposit equal to ten percent of the bond with the remaining 90 percent unsecured. 
In recent months, judges in St. Joseph County (South Bend, Indiana), have been denying a bail bond which secures 100% of the bond opting instead to take a mere 10% of the bond in cash. Why? Do judges so detest bail agents that they would prefer 10% security to 100%? Where is the logic? Where is the discretion?
A one-size fits all bail policy, on its face, lacks discretion. This would hold true of a judge who required a bail bond on every case. There are instances where a first time offender has such strong ties to the community that their risk of flight is minimal and would therefore be a candidate for either a 10% deposit bond or release of their own recognizance.
Conversely, there are repeat offenders and persons charged with aggravated crimes who should be released on a bail bond. Not only does a bail bond provide a 100% guarantee, the bail agent also involves third party co-signors like family members, friends and employers who are willing to cosign the bond. In the event the defendant should fail to appear for court it is these same people along with the bail agent who have a financial incentive to locate and return the defendant to the custody of the court to stand trial. A bail agent will chase a fugitive for months in an effort to get them back into custody and avoid a loss.
The obvious question with these one size fits all bail policies is, does a repeat offender of multiple DUIs, domestic violence or burglaries warrant the same bond option as a first time offender? Those counties exclusively using a 10% cash or full cash option seem to think so.   It appears to me many judges in Indiana seem to think, the public isn’t paying attention. I’m sure they’re right in this regard. The general public knows little about the bail process and it’s refreshing to see a reporter actually ask a direct question of a judge’s bail policy. It’s about time citizens of Indiana become aware how some judges in Indiana have taken a position that generating cash from the bond system is more important than ensuring a person charged with a crime appears in court. 
There is an immediate remedy available to those defendants who did have the means to post a full cash bond or a 10% deposit bond. Indiana Code 27-10-2-15 unambiguously provides thata cash bond can be replaced at any time prior to a breach (failure to appear) with a bail bond for a full refund of the cash deposit. Of course, it would come as no surprise if Judge Snow, in his discretion, chose to ignore this law as well.

Ohio Bail Agents Get Some Good News

Posted October 10, 2011 at 12:00 AM by Michael J. Whitlock, MCBA Executive Vice President under Deposit Bail, Meeting Recaps, and Post Conviction Bonds  - 0 Comments

Bail agents of The Buckeye State met in Columbus on September 22-24 for the 6th Annual Meeting of the Ohio Bail Agents Association. The OBAA has been quietly trying to improve conditions for commercial bail in that state.
Senator Bill Seitz was on hand to speak about his 309 page Sentence Bill (HB 86) which became effective September 27. The bill includes an amendment from the bail industry which provides for the clerk to mail a notice to the surety within 15 days after the declaration of the forfeiture. The show cause period has also been increased from a minimum of 20 days to 45 days.
Senator Seitz is an enthusiastic and loyal supporter of commercial bail and the role it plays in the criminal justice system. Senator Seitz fought hard to include the bail amendment to HB 86. He also committed to incorporating a post conviction bond in legislation he will introduce next year that he calls the Son of HB 86.
Franklin County Municipal Clerk of Court Lori Tyack was also an invited speaker. After hearing her position on deposit bail, the Ohio bail industry can now count Ms. Tyack as a friend in addition to Senator Seitz and Judge Nancy Russo of Cuyahoga County. Ms. Tyack is one of only a handful of Court Clerks in Ohio who are elected as opposed to appointed. She is also the President of the Ohio Clerk’s Association and has invited OBAA members to attend their October meeting and have a booth in their vendor section.
Finally, there was some discussion on the suit brought against an Ohio court clerk who had denied a bondsman from posting a bail bond on a 10% deposit. The Ohio Court of Appeals ruled in favor of the bail agent and directed the court clerk to accept the bond.
The use of deposit bail as an option to a fully secured bail bond is spreading in Ohio. The courts are mesmerized by the cash and quickly forget about the purpose of bail. It will take a continued effort by the bail industry to bring the courts back around to reality.

Bail Agents Attend Qualification Day in South Bend

Posted June 9, 2011 at 12:00 AM by Michael J. Whitlock, MCBA Vice President, American Surety Company under Deposit Bail  - 4 Comments

South Bend, Indiana – A number of concerned bail agents answered a call to action and made their way, from points all around the state, to South Bend on Wednesday, June 8.
 The purpose of this call to action was to have as many bail agents as possible register with St. Joseph County Clerk of Court and the jail to write bail in a county which for the last 40 years has accepted only 10% of the bond in cash, no bail bonds accepted.
Needless to say, when 25 bail agents descended upon the county clerk’s office in South Bend it caused quite a stir. Phones were ringing all over town. What’s a bail bond? How do we file a qualifying power and what do we do with it once it’s filed? We would have found this amusing if not for the serious nature of this effort. Ultimately, they did accept file stamped our qualifying powers and the St. Joseph County Jail did accept our filed copies. Step one of our mission was accomplished.
Our next step will be to raise awareness among the citizens of this part of the state that the use of deposit bail is a failed system. Failures to appear create more work for an already overburdened sheriff’s department and generates public safety concerns with thousands of outstanding felony warrants.
Judges fiercely protect the right to apply discretion, yet they abandon their discretion when they apply deposit bail as a “one shoe fits all” solution to guaranteeing a defendant’s appearance in court. St. Joseph County judges exacerbate an already insufficient bond deposit by allowing the early release of all or part of the cash deposit to the criminal attorney for their fee prior to the bond being exonerated.

Thank you to all the bail agents who joined our first Qualification Day event. Your commitment to the betterment and preservation of our industry has not gone unnoticed. Please watch for information on how you can participate in further efforts to curb the use of ineffective deposit bail in the State of Indiana.

Deposit Bail Creeps Into Washington State

Posted May 2, 2011 at 12:00 AM by Michael J. Whitlock, MCBA Vice President, American Surety Company under Credit Card Bail "Bond", Deposit Bail, and Meeting Recaps  - 1 Comment

Shelton, WA – The Washington State Bail Agents Association held its Spring Meeting at the Little Creek Casino south of Puget Sound last Thursday. The morning was devoted to continuing education with the general meeting held in the afternoon.
On the legislative front, nothing passed in the 2011 session that will impact bail in this state.  There has been significant debate on the issue of how much premium a bail agent should collect prior to posting a bond.   The amount included in legislation is 5% of the bond (50% of the premium). This bill is not expected to pass this year but we can expect to see it again in 2012.
I was surprised to learn of the expanding deposit bail operation in Washington. Apparently, there is no statute on the books that provides for the courts accepting a ten percent deposit on a bond in lieu of a bail bond or full cash. Several counties in Washington have simply decided they were going to enact a local rule regardless, law or no law. They do that sometimes.
There was a lengthy discussion on what to do about the illegal acceptance of ten percent deposit. I shared some ideas on how we have been dealing with deposit bail in Indiana where it is currently legal. I also stressed the need to be proactive in eliminating this practice as the use of deposit bail will continue to spread throughout the state once the courts become blinded by the revenue (sans risk or accountability) and forget what the true purpose of bail really is, to guarantee a
defendant appears in court, each time, every time.
Every state should be paying attention to what is occurring across the country and learn from their sister associations on what is being done to address these efforts of government encroachment on a service best provided by the private sector.

Court Should Have Allowed a Bail Bond in Lieu of Cash Higher Court Rules

Posted April 27, 2011 at 12:00 AM by Michael J. Whitlock, MCBA Vice President, American Surety Company under Bail Bond Insurance, Deposit Bail, and Surety Bail Bonds  - 1 Comment

In a published decision released Monday, the Court of Appeals of Indiana ruled in favor of the plaintiff, Melissa Kay Sneed in the case of Sneed v. State and against Decatur County on the issue of whether the court should have granted her request to post a bail bond in lieu of a cash bond.

For bail bond agents in Indiana this ruling is long overdue.  Too many judges in Indiana have refused a defendant’s option of posting a bail bond and instead have demanded a bond in the form of a full cash bond or a meager cash deposit of 10% (with the balance of the bond being unsecured).

In my view this decision will require judges in counties currently closed to bail bonds such as St. Joseph, Bartholomew, Vanderburg and Marshall to begin allowing pretrial detainees to opt to post a bail bond as opposed to full cash or a deposit bond.

This should be welcome news to residents and more importantly victims in these counties closed to bail bonds who have long endured their local disregard for the rights of victims and residents by not using the most effective release option for assuring a defendant returns for court, a bail bond.
As Sneed v. State clearly states, “…when the defendant is able to deposit the entire amount of the cash bail without the help of a bondsman, it is not very likely anyone will pursue the defendant if he or she decides to skip town prior to trial.”  Bail Agents, whose bonds are backed by insurance companies, have a financial interest in getting a defendant, who has absconded, back to court.

This is a good day for the bail industry in Indiana and I can’t help but quote that much maligned comedic actor Charlie Sheen, and scream, “Winning”!

Trekking in the Northwest

Posted September 30, 2010 at 12:00 AM by Michael J. Whitlock, MCBA Vice President American Surety Company under Commercial Bail, and Deposit Bail  - 0 Comments

Another hearing on reinstating commercial bail in Oregon and a WSBAA meeting in Fife, Washington put me in the Upper Northwest last week.
The American Bail Coalition is in its third year of an effort to bring commercial bail back to Oregon, after nearly forty years, offering an additional release option to judges interested in guaranteeing a defendant returns for trial.
Jerry Watson testified before a joint committee on September 22 at the State Capitol in Salem. As expected, he did an excellent job articulating the merits of commercial bail and its positive impact both from a fiscal and public safety standpoint.
The bill draft is currently in the hands of Legislative Counsel and yet to be filed. This being the case, Committee Co-Chairs Barker and Prozanski were taken aback when Sheriff Todd Anderson, representing the Sheriffs Association and Scott Taylor, head of Multnomah County Pretrial Services, testified in opposition to a bill that had not yet been filed. Anderson and Taylor were both caught flat footed when asked if they were aware the intent of the draft bill was to reintroduce commercial bail as a release option for judges, not to replace pretrial services or the deposit bail system. Did they have a problem with judges having more release options at their disposal? (crickets)
Little patience will be granted to any state agency standing in opposition to the reinstatement of commercial bail who has not had a representative present at one of the many working group sessions taking place the last 24 months.   The working group has been the established venue for voices, objections and concerns. 
Oregon has a major failure to appear problem with thousands upon thousands of outstanding warrants. Bringing back commercial bail is intended to help with both of these problem areas while at the same time bringing additional revenue to the state in the form of premium taxes and bond forfeiture revenue.
Stay tuned to WIWMW for further developments.
WSBAA Meeting
The Washington State Bail Agents Association held its 2010 Fall Conference at the Emerald Queen Hotel in Fife, just outside of Tacoma, September 23. The meeting was well attended with several speakers addressing the membership.
I was asked to speak on the issue of national bail related events after a scheduled speaker had to cancel (I never turn down an opportunity to speak about bail). I updated the membership on the progress being made in Oregon and successful legislative efforts occurring in 2010, as there were several.
WSBAA has been dealing with the fallout of the Clemmons shooting where four Lakewood police officers were murdered. The legislature is conducting hearings on the issue of who should and should not be granted bail. The issue of financing bond premiums and whether it should be allowed is also being discussed.
WSBAA is also concerned about the spread of deposit bail in their state. I shared my opinion that a move to a law prohibiting the financing of premium would provide fertile ground for growth of deposit bail. Given a choice between depositing ten percent of the bond with the court and no strings versus paying a bail agent a nonrefundable ten percent premium with collateral and check-in requirements would be a losing proposition for the bail agent. It’s human nature to take the path of least resistance. That’s great for the defendant, not so great for local residents concerned with their personal safety.
Next Up
Looking to October, there will be annual association meetings taking place in California, Texas and Indiana. Check my event calendar for details.
Click “comments” at the beginning of my blog if you have something on your mind.


Use of Deposit Bail in Indiana Hurts County Extradition Fund

Posted September 27, 2010 at 12:00 AM by Michael J. Whitlock, MCBA Vice President under Bail Bond Insurance, Commercial Bail, and Deposit Bail  - 3 Comments

In late August I was the invited speaker at the Rotary Club in Griffith, Indiana. The engagement was arranged by Luis Rojas, a licensed recovery agent northeastern Indiana.  There were local law enforcement officials, namely the Griffith Police Chief, who were interested in learning more about bail bond insurance impacting the County Extradition Fund.
As I’ve written many times, deposit bail is used by a number of Indiana Courts to the detriment of Indiana residents. The extensive use of deposit bail also directly impacts, adversely so, the County Extradition Fund.
In most states, revenue generated through the payment of bail bond forfeitures is deposited to the state or county general fund. In Indiana a bail bond forfeiture is comprised of two segments, the first 80% is considered a Late Surrender Fee while the last 20% is entered as a judgment should the forfeiture go to term. Upon payment to the court, 50% of the 80% Late Surrender Fee is deposited to the Police Pension Fund (IC 27-10-2-12(i) with the remaining 50% of the late surrender fee being deposited to the County Extradition Fund (IC 27-10-2-12(i). The 20% percent judgment is earmarked for Indiana’s Common School Fund (IC 35-33-8-7(e). Unlike the Police Pension Fund, the County Extradition Fund is only funded by bail bond forfeitures.
This brings us back to deposit bail. The Police Chief of Griffith unfortunately resides in Lake County, a county whose courts use deposit bail extensively.   Because the court only obtains a 10% deposit of the full bond and rarely, if ever, properly forfeits the bond in the event of a failure to appear, the Lake County
Extradition Fund receives little, if no, money from bail bond forfeitures. For that matter neither does the Police Pension or the Common School Fund.
The members of The Griffith Rotary Club, largely comprised of local business owners and officials, were somewhat astonished to learn their local courts were releasing defendants charged with everything from felony DUI to domestic violence on the cheap, deposit bail.  No one was held accountable to recover fugitives and no effort made to collect the remaining 90% of forfeited deposit bonds.
Ironically, any court’s use of deposit bail not only forsakes the County Extradition Fund, Police Pension Fund and Common School Fund, it also increases the number of failure to appear warrants placing a greater strain on law enforcement, adding insult to injury.
 Employing the use of commercial bail would positively impact the County Extradition Fund with an increase in revenue allowing law enforcement to return fugitives from out of state at little or no cost to the taxpayer.

The principal goal of the commercial bail bond industry is to ensure defendants awaiting trial appear in court at all times required, to avoid a financial loss. Should a bail agent fail to perform, the forfeiture may have to be paid. The payment of a bail bond forfeiture would then benefit the Country Extradition Fund, Police Pension Fund and the Common School Fund. Administrators of these funds should take note and contact those county officials continuing to accept deposit bail to the detriment of, not only these funds, but the general public safety of Hoosiers.

It's Simple Math - Deposit Bonds Don't Add Up

Posted February 24, 2010 at 12:00 AM by Michael J. Whitlock, MCBA Vice President American Surety Company under Deposit Bail, and Surety Bail Bonds  - 0 Comments

Indianapolis, IN - An article appeared recently on NewsandTribune.com entitled Released on Bond: A flawed system?  The article was written by Matt Thacker.  The article takes aim at the deposit bond program employed by the Clark County courts in Jeffersonville, IN.  Jeffersonville is located just across the Ohio River from Louisville, Kentucky.  Bail is outlawed in Kentucky but that’s a story for another day.

The Released article cites two studies, an unnamed study from 2008 where 31 percent (30) of Indiana counties responded to a survey.  The study concluded that 47% of $5.3 million collected by the courts on cash bond deposits in 2008 went to the county.  The article also cites the 2007 Bureau of Justice Statistics (BJS) study that said 30% of those defendants released on an unsecured bond (a deposit bond is 90% unsecured) failed to appear while only 18% of defendants released on a bail bond failed to appear.

Let’s use these numbers to paint a picture.  The $5.3 million collected by 30 Indiana counties in 2008 represents a 10% cash deposit against $53 million in actual bonds set by the courts.  This translates to 90% or $47,700,000 of the bonds being unsecured sans the criminal defendant’s personal guarantee.   

According to the BJS Study, 30% of defendants released on unsecured bonds fail to appear for court. This would mean 30% of the $5.3 million, or $1,590,000 of the cash bond deposits collected by 30 Indiana counties should have been forfeited and sent to the State for deposit to the Common School Fund.  This also means the defendants, who deposited the 10% cash with the court to obtain release, owe the State of Indiana the remaining 90% on the forfeited bonds or $14,310,000.  This is what Hoosiers have come to know as toxic debt.

While Clark County and the other 29 counties in Indiana, who accept deposit bonds can rejoice at collecting 47% or $2,491,000 of $5.3 million in cash bond deposits (average of $83,000 per county), Indiana taxpayers can be disgusted at the idea that due to the negligence of these 30 counties the State failed to collect $15,900,000 in forfeited bail and that’s just for one year.   I say negligence because these courts, in their wisdom, elected to allow defendants to be released from jail by depositing just 10% of the bond in cash and sign as a guarantor for the remaining 90% of the bond.  What bank in Indiana, or the country for that matter, would loan someone any amount of money without first running a credit report and in most cases asking for collateral or a third party guarantor?  None that I’m aware of.

Clark County seems to make these underwriting decisions on a daily basis.  The Released article refers to Fadayeen Guy who bonded out of jail in 2006 by posting $7500 cash with the court.  This was 10% of $75,000, the actual bond amount. Mr. Guy was arrested for, among other charges, dealing cocaine.  He was from Tennessee.  According to the Released article, Mr. Guy never made his first appearance and didn’t reappear in court until March 2009.  To Mr. Guy’s good fortune, the court returned his original $7500 cash deposit less $719 to cover probation and court costs.  How great is that!  Had the court required a bail bond, which guarantees a defendant will appear in court every time until the case is adjudicated, the State of Indiana would have received $75,000 as opposed to the county receiving $719 had the bail agent been unable to locate, apprehend and surrender the defendant to jail.

Deborah Neal, staff counsel for the Indiana Public Defender Commission, is quoted in the Released article, saying "As with a car loan or anything else, collecting a judgment can be like squeezing blood out of a turnip".  That is certainly the case; when, in this scenario, you secure the car loan with an unqualified buyer, no collateral or third party guarantor.  I can assure Ms. Neal, the surety companies approved to guarantee bail bonds in Indiana are not turnips.  Surety Bail Bonds companies must pass a rigorous qualification process before being approved to operate in Indiana. Failing to pay verified bond forfeiture judgments will result in the seizure of cash on deposit with the State and a revocation of authority to transact further business in Indiana. 

One can only hope that one day the good citizens of Indiana, their legislative representatives and the Governor will wake up to the fact that the deposit bail scheme in place in several counties is nothing more than a way to generate a few bucks for the county.  They only need to do the math.