Reviving the carefully limited exception: from jail to GPS bail.

• Author: Causey, Alexis
• Position: Global positioning system - II.C. The private bail bond industry is unregulated and does not align with the policy considerations of bail and pretrial release, through Conclusion, p. 87-114

3. The private bail bond industry is unregulated and does not align with the policy considerations of bail and pretrial release

   By the 1800s, "arbitrary money bail bond amounts, coupled with a growing number of defendants who were unable to pay them ..., combined to give birth to a profession unique to the field of American criminal justice--the commercial money bail bond industry." (183) In fact, "only the United States and the Philippines allow the use of private bail bondsmen." (184) Bail bondsmen face considerable financial and physical risks. These risks necessitate charging substantial fees for their services. As a result, bail bondsmen are primarily in the business of making money and ensuring their own physical and financial safety. This dynamic means that indigent defendants usually cannot afford to pay their bond and must stay in jail as they await trial.

   1. Bail bondsmen face substantial risks, both financially and physically, necessitating their substantial fees as insurance

      "Most people bailed out of jail by bondsmen return to court without incident, but the few that put up a fight can present a very real danger to the men and women hired to bring fugitives back to justice." (185) Bondsmen are tasked with ensuring that dangerous individuals remain accountable to the justice system while out of custody. (186) In addition to the physical dangers, bondsmen face financial forfeiture if they fail to deliver defendants to trial. (187) "If bailees fail to appear for their hearings, the bondsman owes the entire bail amount to the court." (188) "Under the professional bondsman system, the only one who loses money for nonappearance is the professional bondsman" because the defendant loses the money he paid to obtain the bond whether he attends the scheduled hearing or not. (189)

   2. Bail bondsmen are in the business of making money, and are not concerned with ensuring the fair administration of justice

      Most bail bondsmen admit their business is about making money and getting their investment back, sometimes hundreds of thousands of dollars at a time. (190) Yet, bondsmen are private actors and are not regulated by the court, the state bar, or any other regulatory agency. (191) In fact, a commercial bail bondsman is under no obligation to try to deter criminal behavior by the defendant. (192) "[B]ail bondsmen hold an immense amount of power over the[ir] bailees, despite the bondsmen's lack of legal, political, or police authority." (193) If bail is granted and set by the court, its execution is ultimately up to the bail bondsmen, not the courts. (194) It is the bondsmen who decide which defendants will be acceptable risks, based predominantly on the defendant's ability to pay the required fee and post the necessary collateral. (195) Instead of having the courts decide "whether an indicted defendant should be incarcerated and punished, these bail bondsmen make [those] decisions in an unstructured universe, where they are both judge and jury." (196)

      Decisions of bondsmen include determining the fee, required collateral, additional conditions the defendant is expected to meet, and whether to post the bond, are made in secret, without recording the reasons for those decisions. (197) Further, it is difficult for judges to regulate the bondsmen's behavior because most state laws allow bondsmen to enter into private contracts with the people they bail out. (198) As a result, "a bail bondsman has complete discretion as to which clients he accepts and which he does not." (199) "The ultimate effect of such a system ... is that the professional bondsmen hold the keys to the jail in their pockets." (200) Therefore, instead of helping defendants stay out of jail, some bail bondsmen may take advantage of the situation, disadvantaging defendants even further. (201)

   3. Indigent defendants may not be able to pay the bond and, therefore, will be stuck in jail

      In a system that grants pretrial liberty for money, those who can afford a bondsman go free, while those who cannot stay in jail. (202) "Commercial bondsmen rarely lend bail money of $1,000 or less, and therefore, their services are usually too expensive for low-income or indigent offenders." (203) "Poor defendants usually do not have the property available to secure such bonds, or friends or family with such assets." (204) Even "if a defendant is fortunate enough to ... qualify for [a] secured bond, [the defendant] then face[s] a web of complex and innumerable fees charged for simple regulation." (205)

      Furthermore, courts are unable to set bail at a meaningful amount for those defendants who are indigent, because the value of affordable bail for the truly indigent defendant is zero. (206) These defendants, by virtue of their poverty, "simply do not participate in the economic life of society; they do not have the vested financial interests that underlie the very notion of bail." Thus, the current system of bail discriminates against poor and middle-class defendants. (208) These defendants remain in jail even though they may pose no risk of failure to appear in court or risk of danger to the community. (209)

      The Supreme Court spoke on this issue as early as 1891. (210) In United States v. Barber, the Court determined that where the government can be assured of an accused's presence at trial, "it is for the interest of the public as well as the accused that the latter should not be detained in custody prior to his trial." (211) Since these pretrial detainees usually belong to the poorest class of people, "requiring them to pay the cost of their [freedom] would [only] result in [the defendant] being detained at the expense of the government," further depriving the defendant's families of their assistance and support. (212) As such, pretrial release should be based on the likeliness of an accused's appearance in court, not on their ability to pay. (213)

      3. IMPLEMENTING GPS MONITORING FOR PRETRIAL DETAINEES FACING NON-SERIOUS, NON-VIOLENT, AND NON-SEX RELATED CRIMES WILL CURE INEQUITIES IN THE BAIL SYSTEM AND WILL DECREASE LOCAL JAIL POPULATIONS

      The size of a jail's population is a function of the number of admissions and each individual's length of stay. (214) These variables are determined by the interactions and decisions of multiple actors throughout the criminal justice system, including police, judicial officers, pretrial services workers, probation officers, prosecutors, defense attorneys, and law enforcement personnel. (215) "[A]n effective solution to jail crowding will not be a single program or policy change but a number of changes to policies, practices, and perhaps [even] legislation." Taken together, these changes could "have a significant and long-lasting effect on the population." (217)

      Many elected officials and policymakers, as well as the general public, are supportive of alternative sentences to incarceration for individuals whose offenses are not serious, violent, or sexual in nature. (218) In October of 2009, the National Association of Counties ("NACo") recommended that counties ensure pretrial investigation, pretrial assessment, and the least restrictive bail bond conditions, "including release on recognizance, nonfinancial supervised release, and preventative detention." (219) Counties can use "objective classification and risk assessment" standards backed up by real data to determine who should be initially incarcerated and who should be released. (220) This would result in a reduction to the jail population while also minimizing any public safety downside. (221)

      "Reasons for supporting alternative sentences include lower costs, the potential for rehabilitation, health and safety issues associated with overcrowding, and [incarceration] being too harsh a punishment for certain offenses." (222) "Having to serve time in one's own community allows offenders [the chance] to stay connected to the support systems that often play a large role in reducing future criminal behavior." (223) Moreover, "when alternatives are implemented appropriately, they serve the dual purposes of rehabilitation and punishment, [in addition to] maintaining public safety." (224)

      This section outlines several alternatives to pretrial detention. First, this section describes how complete release of pretrial detainees is an undesirable and unworkable solution. Second, this section explores the contours of pretrial service programs. While these programs promote rehabilitation and decrease recidivism, alone, they are not adequate to handle the exploding jail population. Consequently, the next three parts of this section explore electronic GPS monitoring as a viable and realistic population-reducing tool to complement pretrial service programs. The first sub-section discusses electronic GPS monitoring generally and how several California counties have expressed interest in these programs. Next, the second subsection discusses how electronic GPS monitoring promotes criminal justice policy considerations. Finally, the third subsection outlines how county officials can implement a successful pretrial electronic GPS monitoring program.

1. Complete release of pretrial detainees is undesirable and unworkable

   Realignment, Assembly Bill 109, aims to decrease prison populations by sending non-violent, non-serious, and non-sex offenders from state prisons to local counties. (225) One of the most important features of Realignment is that it does not directly release anyone. "As Medical Care Receiver Clark Kelso explained, 'politically, nobody could tolerate a straight release of inmates prior to serving their sentence.'" (226) Categorical release of pretrial detainees from jails would also be politically and socially unfavorable. Sending offenders accused of committing criminal acts back into the community with no physical, judicial, or financial accountability would be in direct opposition to the policy concerns underlying pretrial detention and money bail. (227) Not only would...