The core logistics of bail companies are familiar to many Americans. Generally, if someone is charged with a crime, they may have to provide a certain amount of money as collateral to ensure their return to court before they can be released from jail while awaiting trial. Those who don't have the money can pay a bail bondsman a nonrefundable fee to bail them out.
The clear risk of this business model is the possibility that the client does not show up to court and the company forfeits the bail money it paid. But PPI explored how some bail companies can dodge or mitigate that risk in its report All Profit, No Risk: How the Bail Industry Exploits the Legal System, which came out Oct. 4.
"I think there are, of course, logistical challenges to any kind of large-scale reform," said Wendy Sawyer, the author of the report. "That's just the fact of how government works. But I know that there are a lot of people who are committed to figuring out those implementation issues."
The PPI report takes on the debate over whether the bail industry reduces taxpayer burden by providing a public service while operating wholly within the private sector.
"The bail industry is funded by people who are arrested and their families," said Topo Padilla, president of the Professional Bail Agents of the United States. "They pay the premium to be released from jail. The government does not pay us in any way, shape or form. If somebody misses court, we, at our expense, track that person down if we have to and return them to court at no cost to the taxpayer. And there's no doubt that private industry will always do it better than [the] government."
PPI gathered evidence from 28 states where its says bail companies avoided paying forfeited bonds. Here are four takeaways from the report.
Collecting Forfeited Bonds Can Be a Complex Process
The PPI report outlines the complicated road map localities often have to navigate if they want to collect forfeited bonds. Typically, it's the job of judges to initiate forfeiture proceedings; of clerks to notify agents and companies; of state insurance regulators to suspend or revoke a bondsman's authority for nonpayment; and of district attorneys to prosecute agents and companies who default on forfeiture judgments, the report said. With a process like this, it can be up to localities to decide if it's worth the time and money to try to recover what they're owed.
States PPI looked at include California, where Padilla is based. Disputing the notion that bail bondsmen or surety companies don't pay for people who don't show up to court, Padilla said that when one of his clients misses court, he has a period of time to return that person to court or else the court will enter a summary judgment against his bond.
"And if I don't pay that summary judgment, they shut not only me down from posting bail, they shut my insurance company down from posting bail," he said.
Bail Bondsmen Can Sometimes Recover Forfeited Bonds
Even if localities do manage to collect forfeited bonds, the PPI report says bail bondsmen may still be able to claw that money back. According to the report, forfeited money is generally only remitted when an agent brings their client to court or has a valid reason for not doing so; however, a Florida audit of five companies found that in 23 out of 25 sampled cases of agents not paying the forfeiture they owed within the allotted grace period, the company still got remission.
The PPI cites a finding by the National Conference of State Legislatures that 16 states have statutes limiting the time period during which agents can request remission, but these time frames can range from six months to 10 years.
Deadlines Aren't Consistent
In 38 states, if a criminal defendant misses court, their bail bondsman has a certain window of time to return their client to court to avoid forfeiting the bond. In 10 of those states, the bail bondsman has at least six months, according to the report.
"During the grace period, the defendant is often returned to court not by the bond agent, but rather returns voluntarily," the report states.
Still, courts can be bound by strict timelines. In Utah, the report points out, clerks must mail notice of a criminal defendant's failure to appear in court; notify the surety of the prosecutor's name, address and phone number; deliver a copy of the notice to the prosecutor; and make sure the name, address, email address and phone number of the surety or agent listed on the bond is included on the bench warrant, all within 30 days.
Despite Criticism, Bail Cos. Maintain a Strong Presence in the U.S.
"We're a solution, not the solution," Padilla said of his industry. "If you eliminate the bail industry, you're going to leave the freedom of everyone that is arrested to the sole discretion of a judge."
Most states have bail industry operations. Only 14 states and Washington, D.C., have eliminated or restricted the use of commercial bail bonds, according to PPI's report.
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PPI is among several organizations to cast a critical eye on cash bail. The American Bar Association has suggested commercial bail bonds in pretrial release systems, PPI points out.
"When people do figure out what's going on and these double standards, a few individuals really get a bee in their bonnet about it and get really mad and go after it," Sawyer said. "But you have to be willing to wade into the weeds of this process and all of these various statutes that apply and all these technicalities."
Despite the challenges, PPI maintains that "it makes more sense for states and localities to end the use of money bail entirely."
"This, too, would face fierce opposition from the industry, but a major fight to end cash bail is more feasible than rolling back dozens of separate procedural advantages across 41 states and thousands of counties," the report states.
--Editing by Alanna Weissman and Kelly Duncan.
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