News: CJ Exclusives

Bail Agents Spar With Government-Backed System

Advocates go head-to-head over public vs. private pretrial release options

In a scuffle pitting tax dollars versus private funding and the public sector against the free market, the bail bonds industry in North Carolina says that government-funded pretrial release programs seek to run them out of business.

Advocates of the public pretrial release programs say the commercial bail industry discriminates against the poor and skews the system because it’s for a for-profit enterprise.

The conflict came to a head in September when the National Association of Pretrial Services Agencies held its annual conference in Charlotte. Supporters of the bail system claim that members of the association spread lies about the effectiveness of bail agents and advocated doing away with the industry altogether.

“They are using their conference to discredit the use of private bail and the benefits this system provides communities and the state,” wrote Mark Cartret and Larry Mackins, two advocates of commercial bail bonding, in a letter to the editor published Sept. 16 in The Charlotte Observer.

Since colonial times, judges have used commercial bail bonds as a way to release prisoners awaiting trial. Courts began resorting to the state-sponsored pretrial release method in the 1960s.

Traditionally, courts assess a defendant’s flight risk and set a corresponding bail amount. If the defendant is unable to pay, he or she can secure the services of an agent who will post bail in exchange for a service fee. The agent is then responsible for ensuring that the defendant shows up at the appointed court date.

Taxpayer-funded pretrial release programs, in contrast, remove profit from the equation by turning over the bail agent’s role to the government. Court officials interview defendants awaiting a bail hearing, assess their risk of flight or harming others, and recommend limitations on their release aimed at curbing those risks.

The bail bonds system has been around since biblical times, but today only the United States and the Philippines have it as the dominant industry, according to The New York Times. Four states — Illinois, Kentucky, Oregon, and Wisconsin — have banned private bail altogether.

In North Carolina, the industry is alive and flourishing. More than 1,300 licensed agents operate in the state, according to Cartret, who is president of the N.C. Bail Agents Association. The industry is regulated by the Department of Insurance.

Bail agents save North Carolina taxpayers $2 billion a year — funds that would otherwise pay for prison and court costs associated with pretrial release — the commercial bail system benefits students since bond forfeitures go to the public school system, Cartret said.

“It’s a major asset to our criminal justice system,” he said in a telephone interview.

But not everyone shares that view. “I don’t think money has a place, period, whether it’s private surety or whether it’s money that is returned to you,” said Tim Murray, executive director of the Pretrial Justice Institute. “I don’t think money does anything but separate those who have money from those who do not.”

Only about half of defendants make bail when it’s set, Murray said. Defendants sit in jail not because they are a danger or a flight risk, but because they “don’t have the stinkin’ money,” he said.

Supporters of bail agents disagree, saying that bail is effective and safe. They point to statistics from the U.S. Department of Justice showing that after one year, 3 percent of defendants released on a surety bond failed to appear in court, compared with 10 percent of those released on unsecured bonds.

PJI published a response arguing that the Justice Department’s study wasn’t designed to gauge the effectiveness of bonds versus taxpayer-funded pretrial release programs because it didn’t control for all factors involved. Still, supporters of commercial bail say the study shows that bonds help ensure defendants are processed through the system properly.

As to the question of eliminating private bail altogether, pushers of the government-funded pretrial release option wouldn’t tell Carolina Journal whether that was their goal. Instead, they said that bonds are appropriate in some situations.

“There may come a time when somebody might have to have bail, but it should be bail that they can afford — bail that would ensure their return, but money that’s returned upon disposition of the case to them,” said Peter Kiers, president of NAPSA.

Likewise, Cartret stopped short of backing an eradication of pretrial release programs in local governments.

“The main thing that our industry feels is that basically there is a place for everything,” he said. “Judges like options, without a doubt. Overcrowding has forced us to basically look for answers in all directions.”

David N. Bass is an associate editor of Carolina Journal.