Bail bond requirements unfair to inmates, costly to taxpayers

Copyright 2015 (all rights reserved)

By Rudy Apodaca

(published as a guest column on October 28, 2015
in the Austin American-Statesman)

     Our criminal justice system is broken.

     Most people have little understanding of the true workings of the system. I’m not an authority, but after 51 years as an attorney, 14 of them as an appellate judge, I’ve a good grasp of our process.

     I’ll focus on one area that begs to be fixed: the bail—appearance bond laws of every state.

     The other day, Terri Burke and Greg Glod opined in the Statesman that partisan groups could find common ground. Left and right, they claimed, “agree on the need to reduce jail and prison populations, cut the spiraling cost of incarceration, reduce recidivism rates, and remove barriers for [prisoners] re-entering society.”

     But on a much smaller scale, for some of the same reasons, we must modify our bail bond requirements. They’re archaic, harmful, and unfair. They’re also fraught with considerable but unnecessary costs not only to society but to the inmates and their families. I speak of criminal defendants awaiting trial but not yet convicted.

     The procedure runs generally as follows.

     During a defendant’s booking process at the jail, the committing magistrate sets the monetary amount of an appearance bond. Defendants then have four choices: They can post the amount themselves; request a friend or family member to post it; pay a bail bonds person to bail them out; or do nothing and spend a few days or maybe weeks or months in jail until their first appearance in court, later hearings, and possibly trial.

     There’s a fifth choice, but it’s more the magistrate’s choice. The magistrate may permit defendants to execute a personal recognizance bond, under which they merely agree to appear in all court proceedings. No money is paid. Failure to appear may cause their re-arrest and liability for the amount of the bond.

     The procedure is replete with problems.

     First, there are the costs to both defendants and the public. Most jails make a small dent on costs by establishing “three for one” days credit to inmates for good behavior. For each day they spend in jail, they’ll get three days credit. When later sentenced, if they’ve spent 90 days in jail, they’ll receive 270 days credit.

     Another problem: a large number of defendants have jobs. If unable to make bond, chances are good that their incarceration may cost them their jobs. If they have families, they too will suffer. One of the many consequences of this is that the families will turn to welfare assistance, costing the taxpayers more money.

     Finally, when representing an indigent defendant, I’ve come across the following dilemma. Let’s assume he’s been confined in jail for 20 days on the day I’ve negotiated a plea agreement. Let’s also assume that my client doesn’t believe he’s guilty. If he awaits trial, he’ll have the chance to “prove” his innocence.

     The prosecutor, though, offers to reduce the charge and have my client “sentenced” to time he’s already served. Regardless of his innocence, my client accepts the offer after I’ve explained that he’ll be released from jail that same day, without having to pay a fine and maybe court costs. This is possible because the fine/costs are deemed paid by multiplying a pre-set dollar amount by the days of confinement, which produces an amount sufficient to pay the fine. It’s an offer he can’t refuse, despite his proclamation of innocence. Not surprisingly, this process is especially hard on the poor.

     The gravity of these problems is that our bail bond requirements are unnecessary to guarantee the appearance of a majority of defendants. Courts now have the power to issue bench warrants for the arrest of defendants who fail to appear. The risk of re-incarceration and the potential loss of their jobs are all they require to assure their appearance, without the need to bleed every last drop of their savings and earnings from them.

     To solve or even lessen the problems, relying on the courts alone isn’t the answer. It would require the concerted effort of the state bars, court administrators, and the state legislatures to come up with a new way. I know of only one group that would lobby vigorously against such a change: the bail bond companies. For too long, they’ve reaped the benefits our broken systems have afforded them.