LIVES UPENDED AFTER BAIL ARRANGED
ly, keep a curfew, allow searches of their car or home at any time, and open their medical, Social Security and phone records to inspection.
They keep a close eye on their clients, but in many places, no one is keeping a close eye on them.
“It’s a consumer protection issue,” said Judge Lee V. Coffee, a criminal court judge in Memphis, Tenn. Before recent changes to the rules there, he said, defendants frequently complained of shakedowns in which bondsmen demanded extra payments. “They’re living under a constant daily threat that ‘if you don’t bring more money, we’re going to put you in jail.’” The pressure, the judge said, “would actually encourage people to go out and commit more crimes.”
Unlike payday lenders, the bail bond industry deals with potential criminals whose very involvement with the law raises questions about their trustworthiness. But in the U.S. criminal justice system, the Supreme Court has affirmed, liberty before trial is supposed to be the norm, not the exception — the system is intended to allow defendants to stay out of jail.
Some bail bond practices have drawn the ire of judges who complain that payment plans are too lenient on people accused of serious crimes, allowing them to get out for just a few hundred dollars or even no money down. Those judges say it should be more difficult for the accused to walk free.
Other judges see some bondsmen as trampling the rights of defendants. One judge in Lafayette, La., Jules Edwards III, held in contempt two bondsmen who were brothers for intercepting a defendant on his way to court and sending him, instead, to jail.
The judge said the commercial bail industry had put its financial interests above justice and public safety. “If he’s not in compliance with the contract, sue him. How do you get to snatch his body and hold him hostage?” Edwards said in a phone interview.
He added that defendants do not have to go with their bondsmen unless there is a warrant out for their arrest, but many of them do not know that. “What they’re doing is intimidating and coercing and lying,” he said. The brothers declined to comment.
In both Egana’s case and this one, the bondsmen would not have been on the hook for the defendants’ failure to appear, because they diverted the defendants from court dates for unrelated cases, not the ones for which they had bailed them out.
The bond agency, Blair’s Bail Bonds, stopped Egana, who had prior felony convictions, from going to court on charges of fleeing an officer but had bailed him out in June 2016 after he was arrested on charges of possession of marijuana, a firearm and stolen property.
Had Egana been wealthier, he might have been able to post his full bail of $26,000, then gotten it back when he returned for court. But like most defendants, Egana had to turn to a commercial bail bond agent, which charge a nonrefundable fee for the service of guaranteeing the bond.
Not only could Egana not afford the full bail, he could not afford the fee, $3,275. He arranged to pay it in installments. After his release, he said, Blair’s informed him that on top of the premium, he would have to pay $10 a day for an ankle monitor, though the judge had not ordered one. Guilty or innocent, Egana would never see any of that money again. Blair’s has denied any wrongdoing in the matter.
Some customers feel they have no choice but to pay bond agents’ fees — no matter how outrageous they seem. When a home health care aide wanted to bail her son out of Rikers Island in New York City, she was charged $1,000 to have a courier walk her money a few blocks to the courthouse.
A defendant in a serious domestic violence case in Santa Clara, Calif., suffering from a dangerous heart condition, had to have his ankle monitor removed each time he went to the hospital, and was forced to pay $300 to have it put back on afterward.
A woman in Des Moines, Iowa, woke one morning to find that her 2001 Pontiac Grand Prix had been repossessed during the night. Had she put up her car as collateral in a typical loan, she would have been notified that she had fallen behind and given 20 days to pay. But instead, the car was collateral for a bail bond for her child’s father. She owed $700 to the bail agents. They not only took the car, but turned the father over to the jail. Ultimately the misdemeanor assault charges against him were dismissed.
The bond agents in the Lafayette, New York, Santa Clara and Des Moines cases declined to comment. But Jeffrey J. Clayton, executive director of the American Bail Coalition, an industry group, said that credit bonds, as the payment plans are called, should be more tightly regulated and require at least a minimum down payment. However, he said, any rules should preserve the benefit to the customer, namely, “If you have the ability to pay it, just not right now, you can get out right now.”
Bond companies fall into a sort of regulatory gulf between criminal courts and state insurance departments, which are supposed to regulate them but seldom impose sanctions. With rare exception, defense lawyers and prosecutors are too busy with their caseloads to keep bond companies in line. Further complicating issues, it is often unclear whether consumer protection laws apply, and insurance departments say they lack the resources to investigate complaints.
Siphoning from the poor
The use of bail bonds has come under attack in recent years because it keeps the poorest, rather than the most dangerous, defendants behind bars.
State after state has taken steps to reduce or eliminate the practice of making that freedom contingent on money. In response, the bond industry has worked to undermine reforms and regulations, arguing that commercial bail is still the most efficient and taxpayer-friendly way to keep the public safe and the courts running smoothly.
The bond agent takes a fee in exchange for guaranteeing the amount of the bail on the defendant’s behalf. But the fee — or premium — usually about 10 percent, is too high for many defendants, the vast majority of whom are poor. So they arrange a payment plan. The debt, paid over weeks or months of installments, can outlast the criminal case.
The arrangement can include steep late fees or require signing over collateral worth many times what is owed. And while defendants, or the family members and friends who often shoulder the costs, typically pay no interest as long as their payments are on time, if they go into default they can trigger annual interest rates as high as 30 percent.
The use of financial conditions for bail has not always been as widespread as it is today. In 1990, only 24 percent of those released from jail before trial were required to pay. That number soared to almost 50 percent in 2009, the most recent year for which national figures are available. In some jurisdictions, the number is far higher: In New Orleans in 2015, 63 percent of misdemeanor defendants and 87 percent of felony defendants had to pay to be released before trial, according to a study by the Vera Institute of Justice, a nonprofit that seeks to improve the criminal justice system.
Commercial bail fees, often scraped together by multiple family members, siphon millions from poor, predominantly black and Hispanic communities. Over a five-year span, Maryland families paid more than $256 million in nonrefundable bail premiums, according to a report by the state’s Office of the Public Defender. More than $75 million of that was paid in cases resolved with no finding of guilt, and the vast majority of it was paid by black families.
In 2015, New Orleans families paid $6.4 million in premiums and fees, the Vera Institute of Justice found. In New York City last year, bond companies collected between $16 million and $27 million, “a sizable transfer of wealth,” noted Scott Stringer, the city comptroller, “to the pockets of opportunistic bail bond agents.”
The poor pay more than the rich: Some bond agencies offer lower rates to those who are union members, hire their own lawyer rather than use a court-appointed one, or put up more valuable collateral.
The entire premise on which the commercial bail system is built — that when defendants skip bail, someone must either find them or pay, is somewhat illusory. The image of the industry, encapsulated by Dog the Bounty Hunter chasing down outlaws on television, is one of danger and high stakes.
But in most cases where defendants miss court, a bond agent may not have to do anything. Many states allow months for a defendant to be found. In Texas, bond agents have nine months before a felony bail is forfeited. In Colorado, according to the American Bail Coalition, even after a bond is paid, the agent has two years to find the missing defendant and get the money back.
With so much time, many defendants will resurface on their own, or be caught during a traffic stop or other law enforcement interaction, without any effort on the bond agent’s part.
The system has worked well for the industry, even attracting private equity investors. Mom-and-pop bail companies are backed by large surety companies, which guarantee the full amount of the bond in exchange for a portion of the premium. Together, the surety companies and the bail bond agents collect about $2 billion a year in revenue, according to an analysis by Color of Change, a nonprofit focused on racial justice, and the American Civil Liberties Union.
“Bail insurers have shaped the entire industry, as well as the laws they operate under, to safeguard their profits at the expense of people’s lives,” said Rashad Robinson, the executive director of Color of Change.
While most insurance companies expect losses of up to 50 percent, one surety company, Continental Heritage of Florida, had no losses in its bail division for almost two decades. And an industry giant, AIA Bail Bond Insurance Co., said it underwrote more than $800 billion in bonds in 2016. Its losses: zero.
Extortion, theft and kidnapping
On paper, California’s bail laws have strong consumer protections, but regulators have grown so frustrated with complaints that they have repeatedly asked lawmakers for more money to police the industry.
Though California law appears to be quite clear about what bond agents can charge, a review of more than 100 bail contracts and legal documents by the criminal justice reform clinic at the UCLA School of Law found that such protections were routinely ignored. The contracts included all manner of additional costs, including late fees, interest on delinquent balances and “renewal premiums” that required the defendant to pay again to stay out of jail if the case was not resolved within a year.
Unlike in most states, bondsmen in California must return the premium to customers if they surrender them to jail, unless they can demonstrate that their risk level substantially increased. A new arrest for a lesser crime does not constitute increased risk, the law says. But one contract said that if the defendant moved without prior written notice or was arrested for any new offense, his premium would not be repaid. In another, defendants could be returned to jail without a refund if they did “anything to suggest that they might forfeit the bond.”
Between 2010 and 2015 in California, the number of bail complaints to the Department of Insurance nearly quadrupled and became more serious, the department said, with common grievances including kidnapping and false imprisonment for purposes of extortion, forged property liens and death certificates, and theft or embezzlement of collateral.
Complaints about bail bond agents have flooded into insurance regulators across the country but rarely result in meaningful punishment. Part of the problem, regulators say, is that they are outmatched and do not have the resources to investigate abuses. The California insurance commissioner, Dave Jones, said he had twice tried to get a law passed to pay for bail investigations, but both times it was defeated after lobbying by the bond industry.
Clayton of the American Bail Coalition said bond agents objected because the department had over-criminalized the insurance code, pursuing violations as felony cases rather than focusing on revoking licenses.
An upside-down system
It is not hard to find people whose entire lives have been upended by the bail bond industry. Some defendants wind up in jail for no offense other than falling behind on their bail payments. Others decide to plead guilty to crimes that they did not commit just to escape from the financial demands of their bondsman.
Often, even pleading guilty is not enough to get free of the bond agent’s power, since defendants may still owe money. Christopher Franklin pleaded guilty to a misdemeanor assault charge in February 2017. He had paid his bondsman, Rodney Sawyers, more than $4,000, and owed $300 more.
But about a week later, Franklin said, Sawyers showed up at his house in Charlotte, N.C., in the middle of the night, pounding on the front door. Franklin stumbled to answer, disoriented and groggy. Sawyers muscled his way in, Franklin said, handcuffed him and drove him to jail.
Sawyers did not respond to requests for comment.
Franklin’s public defender in the case, Eli Timberg, said he routinely had clients returned to jail for not paying their bondsmen, but Franklin’s case stood out.
“There were no active charges,” Timberg said. “No bond out for him. It was unbelievable.”
Even the jail staff seemed perplexed when Franklin arrived, he said, since his case was no longer pending. After five hours, he was released.