By Michael J. Whitlock
For the last several years we have been inundated with calls to end “cash bail”. We hear on the radio, national news programs, Op-eds, and legislative hearings. Only the wealthy can afford to post cash bail while poor people languish in jail. I agree, it’s a problem.
It has particularly been a problem in my home state of Indiana. We have counties in the Hoosier state that set cash only bail or provide an option to post a cash deposit equal to a mere 10% of the stated bail amount. We have judges in Marion County setting cash bail as low as $500 for illegal possession of a firearm, sex offenses against children and stabbing. This is a problem.
Every state in the country provides that someone charged with crime has the right to be released on bail pending trial unless the offense is capital murder or treason. New Jersey and New Mexico, in recent years, have expanded the no-bail offenses to include anyone who presents a threat to public safety. So, when a court sets a cash only bail it limits the options for an accused to meet the bail obligation. When a court sets low cash bail on a crime of violence it sets the bar too low for assuring the accused appears for trial.
Within the last few years, we have seen the rise of charitable bail organizations whose aim is to post cash bail using private donations. They began with a noble cause, posting bail for low level non-violent offenders who could not afford bail. Their mission quickly evolved into posting bail for anyone regardless of whether the charge was non-violent or violent in nature. Their private donors do not have a say on whether they want their donations used to release violent offenders, unsupervised, back into their communities. These charitable bail organizations have been undeterred. They continue to post cash bail for strangers while professing to want to end the use of cash bail. Excuse me if this comes across a tad disingenuous as ending cash bail would end their cash cow; the annual report for The Bail Project, for instance, states they pay themselves as much as $10 million in salaries and benefits from the very donations that fund their cause.
While I am not in favor of courts setting cash only bail, I am wholly behind surety bail. You see, bail bonds are a surety product. Surety is a financial guarantee. When the accused has the option to purchase a bail bond at a much lower cost than depositing the full amount of bail in cash with the court, the likelihood of being released pending trial is greatly enhanced. Opting to post a bail bond not only helps the accused it also provides assurances to crime victims and the public, the defendant will appear for trial.
When underwriting a bail bond, a bail agent will take into consideration, prior offenses or convictions, the new offense, the defendant’s ties to the community (employment, family, owning a home, etc.). Additionally, a bail agent will require friends, family and/or associates to vouch for the defendant by requiring them to co-sign on the bond much like they would a car loan. In doing so they have skin in the game to ensure, along with the bail agent, the defendant appears for all their court dates. The bail agent also has the legal authority to return a defendant back to the custody of the court should they violate the conditions of their release. Those conditions might include, failing to check-in, committing a new crime while out on bond, or failing to appear for court. These are aspects not associated with posting cash directly with the court. If the accused was to fail to appear for court while out on cash bail, it would fall to law enforcement to locate fugitives and serve the warrants. This is a difficult challenge even for a fully funded police department, must less an underfunded agency, as most large cities in the United States have more than 30,000 outstanding warrants at any given time.
One of the critical elements in the historic escalation of crime being experienced in America today is the move away from the use of secured bail. When a surety bail bond is required, family and friends are engaged in the process of extending supervision of the accused, making it more likely they will comply with the terms of their release pending trial. So yes, this licensed bail agent is in favor of the courts eliminating any singular reliance on cash bail. The efficacy of bail bonds to secure appearance has been proven time and again for more than a century and should remain an option for defendants. I rest my case.