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Surety Bail Pretrial Release Success Rate Trumps That of Unsecured Pretrial Release Programs
A Review of Public and Private Pretrial Studies
Introduction
Each day, thousands of suspects across the U.S. are released from jail pending the fulfillment their legal obligations. Many of these suspects are released through unsecured programs, such as an own recognizance or non-surety bond program, without a financial commitment to the courts or other surety requirement. Thousands, also, are released through the surety (or commercial) bail process, which requires them to pay a small bail bonding fee and, often, list other collateral with a commercial bail agency as a promise that they will return to court to complete their legal obligations.
Countless studies into the efficacy of pretrial release programs have been performed by both private and public research groups over the years. These studies overwhelmingly indicate that the surety bail release system trumps the own recognizance release and non-surety bond release systems when it comes to overall efficacy, costs to tax-payers, law enforcement efforts, and social benefits.
In this article, we will explore some of the empirical data supporting the merits and achievements of the surety bail release system.
Pretrial release program: Background
The United States is founded on the basis that the rights to life, liberty, and the pursuit of happiness are tantamount to the nation’s foremost ideal: individual freedom. In order to ensure that these rights are guaranteed for all U.S. citizens, all branches of the government have established laws that govern human behavior and are intended to dissuade any action that may hinder another individual’s rights. Each law is accompanied by a proposed punishment to be enforced if the law is violated – the application of which is determined in a court of law.
When an individual is suspected of violating a governing law, the suspected violator is arrested, held in a jail or sheriff’s office, and booked for the charges against him or her. However, the suspect (also called a “defendant”) remains innocent unless proven guilty through the due process that is established by the U.S. legal system. As such, the defendant’s rights are protected until (or unless) the individual is proven to be guilty through a full legal process that may take months to complete.
To protect the right to liberty and ensure that a defendant is not deemed guilty before the legal process is complete, defendants are sometimes released from holding and given the opportunity to await the completion of their legal obligations outside of jail.
Thousands of defendants are released from holding each day through a process known as “pretrial release.” An estimated 57 percent of defendants are granted some form of pre-trail release. [6] To provide prospective, in 2007, the average daily detention population was more than 56,000, meaning nearly 32,000 defendants were granted pretrial releases each day. [7]
Why release defendants pending their trials?
Pretrial release programs have many benefits - both for the government and for defendants. First, they enable defendants to have their rights protected in accordance with federal law, as stated by Marie VanNostrand, Ph.D., Gena Keebler, and Luminosity, Inc., in an article entitled “Pretrial Risk Assessment in the Federal Court;”
The release of defendants pending trial is consistent with the presumption of innocence and the Eighth Amendment right against excessive bail, it permits the defendant to more fully assist in the preparation of his defense, and it reduces the possibility that the defendant might be detained for a longer period than would otherwise be appropriate if convicted of the accused offense. [7]
In addition to ensuring that the rights of defendants are protected, the pretrial release program also theoretically saves the government a significant amount of money, as the government does not have to pay to house and care for defendants while they await their trials.
In 2007, the average cost of pretrial detention was approximately $19,000 per defendant while the average cost of releasing the defendant was between $3,100 and $4,600 per defendant. [7] Assuming 32,000 defendants are released pretrial each day, the government potentially saves $608 million per day simply by releasing defendants prior to their trials.
However, the government only saves money through the pretrial release program if the defendant complies with all court orders and completes his or her legal obligation as expected.
Pretrial release methods
There are several different types of pretrial release systems, including pretrial release on unsecured bonds, release on own recognizance, and release on surety or commercial bail. Of the defendants who are granted pretrial releases, twenty-five percent are released on commercial bail and 14 percent are released on their own recognizance. [6]
Pretrial release systems have similar legal consequences if a defendant fails to complete his or her legal obligation. Through all systems, if a defendant absconds - or fails to complete his or her full legal obligation - the defendant can be tracked down by law enforcement officials, rearrested, and returned to jail, generally without an opportunity for another pretrial release.
A major difference between the bail release system and the unsecured release system is that, with surety bail, suspects (and their cosigners) are financially accountable if the defendant fails to fulfill his or her legal obligation. The defendant, essentially, promises to pay a penalty if he or she does not complete the legal obligation, which could include a having lien on any property and additional financial obligations. As a result, surety bail programs require defendants to be financially accountable and, therefore, financially committed to completing their legal obligations
Again, through the unsecured release system, suspects do not incur financial loss if they fail to complete their legal obligations; they are simply rearrested and returned to jail.
In short, the surety bail release system provides suspects with a strong incentive to complete the legal process, while the own recognizance system does not provide suspects with a financial incentive to return to court.
Statistics indicate that defendants respond positively to the financial incentive and risks established by the surety bail release program. As a result of the accountability requirements of the surety bail release system, this system has been far more successful in ensuring that suspects return to court for trial than the released on recognizance alternative. According to an analysis by the U.S. Department of Justice, “Defendants on financial release were more likely to make all scheduled court appearances” than defendants released on recognizance. [8]
This analysis is critical, as data indicates that a large percentage of defendants released from jail pending their trials do not follow the letter of the law while they are out on pretrial release and, ultimately, get rearrested for crimes committing during their releases. Moreover, when they abscond from their legal obligations, they are often very difficult to recover and rearrest.
Statistically, about 33 percent of defendants who are granted a pretrial release are “either rearrested for a new offense, fail to appear in court as scheduled, or commit some other violation that results in the revocation of their pretrial release,” according to the U.S. Department of Justice’s most recent data. [6]
A similar study indicated that 15 percent of defendants released on their own recognizance and 16 percent of defendants released on unsecured bonds were rearrested during their releases, while only nine percent of defendants released on surety bonds were rearrested during their releases. [9]
Unsecured pretrial release problem 1: Repeat offenders wreak havoc
In addition to the costs and law enforcement resources required to pursue an absconding defendant to rearrest him or her, there are significant safety risks involved with releasing a defendant from custody while he or she awaits his or her trial.
In 1996, a startling “16 percent of defendants were rearrested before their initial case came to trial,” according to Helland and Tabbarok. [2] These rearrests were for crimes committed after their initial arrests and releases. By 2004, the U.S. Department of Justice estimates the number of pretrial release defendants who were rearrested before trial to be 21 percent. Two-thirds of those rearrests were for felony crimes. [6]
Add these figures to the aforementioned U.S. Department of Justice analysis that about one third of defendants who were granted a pretrial release “were either rearrested for a new offense, failed to appear in court as scheduled, or committed some other violation that resulted in the revocation of their pretrial release” and the potential safety hazards of the pretrial release program beg for an increased level of defendant policing and monitoring, as provided by bail agents. [6]
The data speaks for itself: a significant amount of resources need to be allocated to keep track of and, sometimes, pursue and rearrest, defendants who have been granted pretrial releases. When tax-payers are burdened by these expenses and police departments struggle to manage the overwhelming waves of absconding defendants, the pretrial release program risks becoming financially and social disastrous for the U.S. economy, communities, and legal systems.
However, based on the statistical implications of the surety bail bonding program, when defendants are released on commercial bail, bail agencies not only monitor the activities and whereabouts of their clients, but they also enlist the necessary resources to pursue and rearrest any absconding defendants. As such, the bail bonding program proves to be far more beneficial for the U.S. social, legal, and economic systems than the own recognizance release system.
Unsecured pretrial release problem 2: Unsecured releases result in a higher incidence of absconding
While there is a high percentage of rearrests that occur during pretrial releases, many defendants also abscond from their legal obligations, thereby becoming fugitives. As with the rearrest incidence, studies indicate that surety bond program consistently delivers a lesser percentage of fugitives than unsecured release programs.
Countless studies conducted throughout the past two decades all indicate the same thing: a large percentage of defendants who abscond from their legal obligations remain fugitives for an extended period of time (often more than a year) before they are found and rearrested…if they are found and rearrested. While these many studies that have all returned different statistical data (most often depending on the organization performing the research and the counties being studied), all of the data indicates the same basic information: surety bail release systems yield a higher rate of legal obligation fulfillment than unsecured release systems.
The unsecured release system has a fail-to-appear rate of nearly twice that of the surety bail release system. According to data published by the U.S. Bureau of Justice in 1994, defendants released on their own recognizance had a 26 percent failure-to-appear rate, while defendants released on surety bonds had only a 15 percent failure to appear rate in the nation’s 15 largest counties studied. Defendants released on unsecured bonds had a staggering 42 percent failure-to-appear rate. [9] [figure 1]
The U.S. Bureau of Justice’s most recent data indicates that “Of the 21 percent of released defendants who had a bench warrant issued for their arrest because they did not appear in court as scheduled, about a fourth, of all released defendants, were still fugitives after one year.” [6]
The National Centers for Policy Analysis study indicates that this figure may even be higher; from their study of performance in 75 of the largest counties in the country throughout the 1990’s, researchers found that nine percent of defendants released on own recognizance and 19 percent of defendants released on unsecured bonds were still fugitives after one year. [9]
In contrast, when defendants released on surety bail systems absconded, only three percent of them were still fugitives after one year. The National Centers for Policy Analysis study points to research that indicates that private bail agents had a 0.8 fugitive rate (the rate of absconding clients) versus an eight percent fugitive rate for unsecured releases. [9]
Additionally, Noted economic researchers and professors Eric Helland and Alexander Tabarrok claim that bail bondsmen decrease failure-to-appear rates by as much as 50 percent. [11]
Unsecured pretrial release problem 3: Assumption of the financial and resource toll
Because of the high percentage of defendants who fail to appear in court after being released on recognizance or unsecured bonds, law enforcement officials are overwhelmed with the burden of tracking absconding defendants down to rearrest them.
However, the surety bail release method reduces the burden of law enforcement officials to track down absconding defendants because commercial bail bonding agencies privately assume the responsibility of tracking down and rearresting their clients if their clients fail to appear in court.
Approximately 14,000 commercial bail agents across the country secure the release of more than two million defendants each year, according to the U.S. Department of Justice. [8] These bail agents are often independent contractors who use credentials of a surety company to which they pay a fee. To secure commercial bail bonding services, the defendant pays a fee to the bail agent (usually 10 percent of the total cost of the bail) in exchange for the bail services. Bail agencies then keep track of their clients to ensure that they complete their legal obligations successfully.
Bail bonding agencies have a vested interest in ensuring that their clients complete their legal obligations; as long as a defendant returns to court to complete his or her trial, the bail bonding agency will receive a refund of the bail bond it paid for the release of its client. If the defendant fails to appear, the bail bonding agency will lose the refund, which is often a significant amount of money.
However, if the suspect fails to appear in court, but is later apprehended and returned to court, the agency may receive a refund in addition to any fees, liens, and collateral that the absconding client is contractually bound to pay to the agency. The process provides bail bonding agencies will their own financial incentives to pursue absconding defendants. Often, bail agencies will hire private bounty hunters to track down absconding defendants.
Helland and Tabarrok explored the causes of the increased efficacy of the bail system over the own recognizance release system and published their findings in an article entitled, “Public Versus Private Law Enforcement: Evidence from Bail Jumping.” Through their research, they concluded that one of the reasons defendants tend to complete their legal obligations more through bail systems is because bail bonding agencies keep a watchful eye on the defendants to ensure that they return to court. According to Helland and Tabarrok,
Bond dealers and their agents have powerful rights over any defendant who fails to appear, rights that exceed those of the public police. Bail enforcement agents, for example, have the right to break into a defendant’s home without a warrant, make arrests using all necessary force including deadly force if needed. [1]
By contrast, when a defendant fails to appear in court after being released on his or her own recognizance, the public police force is tasked with the job of tracking that defendant down for rearrest – a charge that stretches many police departments too thin to be fulfilled correctly and successfully with many cases. As Helland and Tabarrok noted, “In contrast [to bail bonding agencies], public police bureaus are often strained for resources and the rearrest of defendants who fail to show up at trial is usually given low precedence.” [1]
Again in their paper, “The Fugitive: Evidence on public versus private law enforcement from bail jumping” Helland and Tabarrok reinforce the importance of the role of commercial bail bonding agencies in monitoring defendeants:
Public police have the primary responsibility for pursuing and rearresting defendants who were released on their own recognizance or on cash or government bail. Defendants who made bail by borrowing from a bond dealer, however, must worry about an entirely different pursuer. When a defendant who has borrowed money skips trial, the bond dealer forfeits the bond unless the fugitive is soon returned. As a result, bond dealers have an incentive to monitor their charges and ensure that they do not skip. When a defendant does skip, bond dealers hire bounty hunters to return the defendants to custody. [2]
As stated by Helland and Tabarrok, bail bonding agencies are not only in the business of helping suspects employ their rights to due process by awaiting trial outside of jail, but bail agencies are also in the business of generating revenue. After all, bail bonding businesses are for-profit; not charitable. Bail bonding agencies lose a significant amount of money if their clients fail to appear in court, as they will not receive the bail bond refund. Therefore, bail bonding agencies commit a significant amount of their own resources to ensuring that their clients fulfill their full legal obligations.
In a sense, bail bonding agencies act as arms of the law, supervising and helping to ensure the completion of the legal process by monitoring defendants on release and apprehending fugitives – and at no expense to tax payers. Interestingly, the U.S. is the only country that allows bounty hunting, which is, perhaps, a testament to how important the services of bounty hunters are to the government and law enforcement communities.
A solid case for surety bail
Decades of research that has taken place throughout the country and at all levels of the legal system all indicates that the commercial bail release method greatly reduces the tax-payer burden and strain on law enforcement resources that are necessary to enforce the legal process. Moreover, due to the efficacy of the commercial bail system, the commercial bail system and its bail bonding agencies help to ensure that communities remain safer as fewer defendants commit crimes on release and fewer fugitives released on surety bonds remain at large.
Economics and Law professor Dr. Michael Block studied the financial implications of the bail bonding system nearly a decade ago and determined that an increase as small as seven percent in the number of bail releases in 12 of California’s largest counties would have amounted to $1.3 million in taxpayer savings.
According to Block, there would be a significant “social costs” savings as well; “We estimate there would have been a savings in social costs due to a reduction in the number of fugitives of about $13.3 million” in only 12 counties in the state of California. [1]
In part as a consequence of the many studies of the efficacy and other benefits of the surety bail release system, there has been a predominantly steady increase in the number of surety releases in the past two decades, which coincides with a general decrease in the number of unsecured releases. The total number of defendants being released pretrial has also steadily decreased. A Bureau of Justice Special Report that published in 2007 and revised in 2008 explains this trend:
From 1990 to 2004, an estimated 62% of State court felony defendants in the 75 largest counties were released prior to the disposition of their case. Defendants were about as likely to be released on financial conditions requiring the posting of bail (30%) as to be granted a nonfinancial release (32%)… Except for a decline to 57% in 2004, the percentage of defendants released each year varied only slightly, from 62% to 64%
A more pronounced trend was observed in the type of release used. From 1990 to 1998, the percentage of released defendants under financial conditions rose from 24% to 36%, while non-financial releases dropped from 40% to 28%... Including both released and detained defendants, the percentage required to post bond to secure release rose from 53% in 1990 to 68% in 2004. [10]
In conclusion, surety bail release programs result in fewer incidences of crimes committed on release, fewer defendants absconding from legal obligations, and decreases the financial burden on U.S. tax payers, and virtually eliminates the overwhelming burden on law enforcement system. With so much evidence supporting the importance and multitude of benefits of the surety bail system, it is hopeful that the trend of an increase in surety releases and decrease in unsecured releases will continue in the coming years.
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