Wednesday, May 29, 2013

Commercial Bail: The Great Compromise

Those who participate in the providing of security so that persons accused of a crime may be at liberty pending their trial not only perform an indispensable service to the effective administration of our country’s criminal justice system, they also are the inheritors of a great legacy.

These women and men, these “bail bondsmen” as they are called, without whom there could be no such “secured releases”, are able to trace, with justifiable pride, their origin in America all the way back to that cold day of December 15, 1791 when the first ten amendments to the united States Constitution were ratified.  These amendments collectively were called “The Bill Of Rights”, and number Eight among them said: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Bail, the process whereby one would, upon having someone place with the court sufficient security, be released from pretrial custody, thus found its way forever enshrined in that greatest of all documents -  a document evidencing individuals surrendering their autonomy in order to create agreeable rules by which to live. Of this document, The United States Constitution, United States Supreme Court Chief Justice Warren Burger wrote: “Our Constitution has had as great an impact upon humanity as the splitting of the atom.”  And thus “secured release” (precisely what commercial bail is all about) became an integral part of that document upon which our very nation was founded.

But this issue of whether to release persons prior to their trials clearly presented the framers with a challenge; actually a conundrum.  On the one hand a good government would be fair to all concerned, whatever the issue at hand.  Where, for example, a person has been arrested and placed into custody upon reasonable suspicion of having committed an offence against the state (all the rest of the people), that person should be treated fairly under the circumstances.  Certainly it would be better for him if he could be at liberty pending trial so that he could tend to his work, be with his family and assist his attorney in the preparation of his defense.  But the interest of the balance of society (those whose interests the accused is charged with having violated) are also to be considered, are they not? And what, exactly, are their rights in the matter? Is it not simply to have justice done? And does that not mean for there to be a determination of the guilt or innocence of the accused, and if guilty he in fact is, then for the proper measure of punishment to be applied?  What would have to be assured in order for those rights to ultimately be protected? Would it not be to make certain that the accused stood trial?  It seems that these rights of the community to see justice done not only can and would occur if the defendant appears for disposition of his case, but it is just as clear that justice will not, and in fact cannot, occur if he does not appear.

This, then, was the founders’ objective: to be fair to the accused while not unduly diminishing the rights of the community at large.  George Mason, in the Virginia Declaration Of Rights, in January of 1776 said: “Government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community.” And our forefathers were no doubt grappling with how to meet this duty to the community without at the same time sacrificing fairness to the accused. And so they came up with a solution, a compromise of sorts, which would as perfectly as possible protect both sides of the equation; the accused and the rest of the community.  They would allow the accused to be released before his trial (thus being fair to him), but only upon the condition that security, in an amount not more than adequate to ensure his reappearance, be put up with the court (thus being fair to the rest of the community). And that is the Eighth Amendment: “There shall be no excessive bail…”. In other words: the accused can be released, but only if his return to court as directed is sufficiently secured .  It is no coincidence that most states have “copied” this concept in their own state constitutions with such words as: “Offences shall be bailable upon sufficient surety”.

This, then, was the founders’ compromise, and it leaves open only the key question which should be adequately answered prior to the release from pretrial custody of any accused: What amount of security is required to reasonably guarantee that this person will return to court when ordered to do so?  And the commercial bail bond writer is the one putting up that financial “guarantee” ensuring that the accused will stand before the court so that “justice for all” is accomplished.

Wednesday, May 22, 2013

Commercial Bail Aligns with the American Bar Association

Opponents of the private sector insurance business of commercial bail bonding often attempt to justify their position by claiming support from the American Bar Association (ABA).  It appears, upon examination however, that on principle the ABA and commercial bail are not so at odds as the “free bail” champions would have you believe.

First though, a personal disclaimer: while I have long been associated with the commercial bail side of the equation and am considered by some as a qualified spokesperson for it, I cannot claim the same privilege when it comes to the ABA. I have been a proud member of that organization for many years and have even written articles on bail published by it, but I still cannot presume to speak for them on the issue made the subject of this piece. I believe that authority resides exclusively within the confines of the ABA Criminal Justice Standards Committee.

That having been said, I nevertheless believe that my analysis of the agreement in principle that exists between the ABA and commercial bail on best practices of pretrial release is sound and so I offer it here for the reader’s consideration.

The central question is: what method of release pending trial, currently in existence, best meets American justice system requirements?

I believe that a good case can be made for the proposition that the ABA’s combined pronouncements would require the answer to be: commercial bail.

Here is how I arrived at that conclusion: The Third Edition of the ABA Pretrial Release Standards provides at the outset and as a background for all that follows, that the purposes of the pretrial release decision are the three basic elements found in ABA Pretrial Release Standard 10-1.1, which are:

          The heart of this is, of course, the Eighth Amendment to our U.S. Constitution providing  
          that bail shall not be excessive.  Commercial bail could not agree more and lobbies right
          alongside the ABA for bail being set in “reasonable” amounts, certainly not more in a given
          case than that calculated to ensure the appearance of the accused as directed.

          Every major study on the subject of appearance rate comparisons among all the various release
          methodologies always has commercial bail being superior to any others.

          Again, all credible studies demonstrate that the misconduct rates of released subjects is lower
          for those released via the commercial bail bond system.

In essence, then, there we have it. The primary qualification is: that method of release which satisfies the requirement of the Eighth Amendment gets defendants to court for disposition of the charges against them and affords the highest degree of public safety.

The hands-down winner is the commercial bail system. Some other approach may satisfy one of these three requirements. For example: the unsecured own recognizance release approach may satisfy the “no excessive bail” restriction, but no method apart from secured release as provided exclusively by commercial bail accomplishes all three objectives: (1) fairness to the defendant, (2) fairness to the court and (3) fairness to the community. And all three of these, combined, represent what the ABA says must be in place for all around justice to occur.