Evolution of Bail Bonds

bail_bondsMany of the concepts that form the foundation of our system of justice were borrowed from what we refer to as the common law as it was developed during Anglo-Saxon times. That was a long time ago.

A really, really long time ago.

Even then jails were expensive. And, bail wasn’t that common. Mostly, bail wasn’t that common because most criminals were summarily dealt with by resort to mutilation or execution. Suffice it to say early punishment options were not particularly progressive or sanguine. Regardless, sometimes there were protracted disputes that took time to resolve. So, to avoid the costly hassle of incarceration while the matter was pending the sovereign would release the accused in exchange for a pledge of lands or money. The pledge was kept as security in the event the accused failed to appear to answer the charges. So, if the accused skipped town the accuser got the money and was made whole.

Back then, the concept of bail made perfect sense. After all, if the sovereign released you while a matter was pending what assurances did it have that you would return to answer the charges? They could ask that you promise to return. And, I’m sure for many of the accused their honor was still among their prized possessions. For them a promise was enough. But, what about those who lacked honor or for whom a conviction and untimely death or facelift was a reasonable certainty? What about those who’d maybe pre-purchased tickets for passage on the Nina, the Pinta, or even the Santa Maria? If they were to release those people from jail before resolving the case, how on Earth did they expect to be able to ever find them again?

There were no organized police forces. No radios or walkie-talkies. No fingerprints or CSI. No FBI or Interpol. There were no “mug shots.” There was no America or its “Most Wanted.” They didn’t have TV or local news or surveillance footage. They didn’t issue social security or driver’s license numbers or even library cards.

Neither the cobbler nor the haberdasher nor the apothecary inquired whether his customers would be paying with “cash or credit card.” The wheel was still the pinnacle of automotive achievement. VIN numbers and license plates were not affixed to horses or wagons. Oxen were not subject to yearly registration at the local DMV. There were no computers or email. No landlines or pay phones or fax machines or cell phones or iPads or even tablets not made of stone. There was no “cloud”—only clouds.

The wary remonstrance of the middle-aged regarding this “device” or that was reference to whatever medieval torture device was in vogue for that season. They didn’t post pictures of their junk or their breakfast or of both on MySpace or Facebook or Twitter or Snapchat or Instagram or any of the innumerable web-based dating sites. Ponce de Leon was still 400 years from being born and so the question of whether he could have located the Fountain of Youth with the aid of GPS and Yahoo or Google Maps remains tragically unanswered. There were no Angry Birds—only birds.

In Anglo-Saxon times the idea of “bond jumping” might literally have been as easy as riding to and settling in the next village over or not answering aloud when an out-of-breath and angry-looking authority figure called out your name. So—to complete the thought—cash bail made sense when the idea of technological advancement still referred to things that were hewn out of stone. Such technological ineptitude carried forward to the days of the Wild West when the for-profit commercial bail bond system began to proliferate in this Country. And, I’ll admit that when the West was still wild commercial bail for all of the accused still made plenty of sense. But, that’s probably the last time it made much sense.

Why?

Think about what it is. A citizen is cuffed and stuffed and matriculated to the County hoosegow. They get ink on their hands and a Glamour Shot. They go sit in a holding tank. At some point a queue is formed for magistration. That’s where a magistrate hears probable cause and sets a bond amount.

The statement of probable cause is an entirely one-sided affair. Citizens accused do not have their lawyers present. Accusers are not subject to cross examination. The evidence is not tested. Alibi witnesses are not called. No defense is presented or even asked for. The only meaningful advice given the accused is that they should remain silent. It is the untested accusation leveled against a person who is legally presumed to be innocent that primarily informs the magistrate with respect to setting a bond.

To ensure bond figures are not pulled out of asses or hats magistrates refer to a document known as the “bond schedule.” It’s easy enough to find. The bond schedule for felonies in Harris County is online here and the bond schedule for misdemeanors is here. If you haven’t the time or data or inclination to explore the links, I’ll give you the quick and dirty summary. Basically, bond amounts escalate based on criminal history and on the seriousness of the offense.

Now, there are two ways to satisfy the bond necessary to secure release from jail. There are “cash bonds” and there are “surety bonds.” Cash bonds are a perfect example highlighting the iniquity inherent in the system. Let’s say the magistrate sees that you have no prior criminal history and that you have been charged with a first offense DWI. S/he looks down at their trusty little bond schedule and sees that $500 is what it recommends. You’ve got a good job. You’ve got a savings account with a rainy day fund and—it’s raining. Luckily, within a few hours you have the financial wherewithal to make it rain—to the tune of $500—in the County lockup. Paying the full amount will secure your release with a document that includes your first County court date. The County holds on to that $500 until your case is resolved. Once resolved, and provided you made all your court dates and did nothing to warrant revocation of the original bond amount, you get your $500 back.

Wait? Upon resolution of the case you get the $500 back? So…what was the point? The idea supporting the temporary extortion of $500 is that it alerts the citizen to the seriousness of the situation and that it’s too much money to simply abandon. So instead, the expectation is that a person will dutifully appear at their regularly scheduled court dates until the case is resolved to avoid forfeiting the money.

Bond is to court what cheese is to a mousetrap.

It’s really just that simple.

Surety bonds are for those of us who cannot make it rain. If you can’t make it rain a surety surely can. Bond companies are the purveyors of surety bonds. Generally, they charge ten percent. So, you pay their fee and they go down to the jail and make it rain on your behalf—to the tune of $500. Once you’re out on bond the bondsman’s role is reduced to a singular focus: make sure you show up to court. That’s it. That’s their only job: to make sure you show up to court. Indeed, that’s the only purpose served by a bond in the first instance: to make sure you show up to court. It matters not whether the bond amount is $500 or $500,000. It is the mechanism relied upon by the courts to ensure the presence of the accused. To make sure you show up to court.

That’s it.

If you cannot make it rain yourself (i.e. cash bond) or by proxy (i.e. surety bond) you sit in jail until your case is resolved.

Why?

They have no other way of ensuring you show up to court.

Really?

The Shah’s of the industry suggest that “commercial bail is user-funded” pretrial release that imposes no financial burden on the taxpayer.[i] In other words, citizens accused of criminal offenses are required to post bond or pay someone else to make sure they show up to court. Now, I’m on board with the idea that taxpayers shouldn’t be asked to pay a ransom to monitor the criminally accused to ensure they make their regularly scheduled court appearances. But, what exactly is the cost of “monitoring” those who have every intention of appearing in court? And, why are we presuming such “monitoring” is necessary?

Isn’t this America?

The land of opportunity and second chances?

How about a first chance?

Granted, for those committed to a life of crime and for those whose transgressions shock the conscience, polite society has every right to expect pretrial release to be burdensome. That’s why the bond schedule amounts escalate based on criminal history and on the seriousness of the offense.

But, what about those with no criminal history or whose offenses are relatively minor? Moreover, what about those with no criminal history or whose offenses are relatively minor who happen to also be poor?

Here’s a thought: give them a chance.

I find myself annoyed by the suggestion that every citizen accused needs monitoring. Reformation might start easily enough were we to actually confer upon citizens the promises already written in our code in the form of the presumption of innocence. It’s insulting and shameful to suggest every otherwise upstanding citizen accused of a crime will somehow ignore or otherwise fail to appear in court. It’s also insulting and shameful to believe every otherwise upstanding citizen accused of a crime is guilty. Often, I tell clients compulsory due process can be loosely translated to mean “Fuck you—prove it.” Plenty of them have stood with me and forced the State of Texas to attempt to do just that. And plenty of them have won. Trust me, my clients and I are not alone. Clearly, not every citizen accused will run.

But, even if you refuse to believe that, all is not lost. Why not at least give them a chance to screw it up? We’ve already discussed cash and surety bonds. But, there is a third option—seldom used. It’s called a PR bond, or, a personal recognizance bond. Basically, it means you get released without having to pay any money. So, what that means is those with no criminal history or whose offenses are relatively minor would be released on a PR bond. They leave knowing what they are charged with and that a warrant will issue for their arrest if they fail to appear in court on the scheduled date.

I can already hear the gnashing of teeth.

But seriously, it’s 2016 and I’ve never even seen a team of oxen. There is a 24-hour news cycle and more people meet for the first time online than in person. There are medical conditions associated with staring at a computer screen or device too long. Is there really a rational belief that folks raised in the city have the ability to fall off the grid? Is there really a rational belief that even if they did they couldn’t or wouldn’t be found?

So, if they don’t appear for whatever reason, a warrant issues and they get re-arrested. Forevermore, if they want out of jail, some kind of bond would be necessary. Why? Because we gave them a chance and they blew it.

The idea is not particularly revolutionary, either.

Want to know what a traffic ticket is? Next time you’re cited, read the fine print. A traffic ticket is a PR bond. The officer writes you a citation based on probable cause to believe you committed a traffic violation. Your signature on the citation is your promise to appear in court. No bond. No muss. No fuss. You get a ticket and promise to appear in court to deal with it. That’s a PR bond. Want to know what happens if you don’t show up on the court date? A warrant issues for your arrest. Sound familiar?

And somehow, the Country isn’t on fire.

Personally, I think it’s a good idea because it doesn’t begin with a presumption of criminality. Granted, I’m biased in favor of freedom. Nevertheless, I also think it’s a good idea because there’s no such thing as a free lunch.

If a citizen accused cannot afford a cash or surety bond and is not granted a PR bond by a judge or magistrate, they sit in jail until their case is resolved.

Many pretrial detainees are also the family breadwinners. Except, when they go to jail and don’t turn up for work and after a few days are fired. When they get fired those families they were winning bread for lose what little support they once had. They don’t go anywhere because they can’t afford to. Fortunately, we don’t allow them to starve and die in the streets in this Country. Instead, taxpayers pay for them to be placed on social services. Thanks to our draconian pretrial release policies a family that was previously contributing to the tax base is now dependent upon it for survival.

That seems smart.

Jail is not fun.

Still, jail is not free.

And, seeing as how those pretrial detainees are in there on account of their no-account status, taxpayers end up footing the bill for their stay there, too. And later, because us taxpayers are so magnanimous, we foot the bill for their appointed lawyer, as well.

What’s insulting about it is the fact that we’re not paying to house them on account of their criminality. We’re paying to house them because we aren’t positive they are the kind of poor but otherwise upstanding citizens who would show up to court if accused of a crime.

Being broke isn’t a character flaw.

Unless you happen to be accused of a crime.

[i] https://www.accredited-inc.com/pdf/news/com-bail-facts.pdf

About Rick Oliver

Rick Oliver is a criminal trial and appellate lawyer. In 2016 Rick was certified by the Texas Board of Legal Specialization in Criminal Law. He applied for board certification less than 7 years after being licensed and having never worked under another attorney, or as an assistant district attorney, and without relying on a single court appointment in order to meet the application requirements. He is a 2007 graduate of South Texas College of Law and has been a solo practitioner since 2008. His articles have been published by The Voice and The Defender. He is a member of TCDLA, HCCLA, MCCDLA, NACDL, and DUIDLA. He lives in Humble with his wife and two children.

Twitter: @rickoliverlaw

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