Commercial bail works - An Ongoing Research Report

COMMERCIAL BAIL WORKS
(Ongoing Research Project) 1
©2016 – 2017: Author: Derek P. Nelson, Bail Industry Advocate, Minnesota
Research and history shows that the commercial bail bond industry has been proven to be
the most effective means of accountable pretrial release, at no cost to the tax payer and provides
greater success towards the reduction of habitual criminal behavior. Often people relate the term
“bail bond” to the term “Bounty Hunter”, without understanding what a bail bond is, and its
unique purpose within the criminal justice system. Since the 1950’s, multiple states have
eliminated the industry of commercial bail bonds, while subsequently relying on the Local and
State government to handle the supervision of pretrial released defendants. This reliance on court
or government run pretrial release programs has negatively impacted and put to risk the public
safety of communities and created an incredible burden on the taxpayer.
The original process of what is now known as commercial bail, can be track as far back
as the 1600’s. In 1679 the English Parliament passed the Habeas Corpus Act, among the other
provisions, established that magistrates would set and create terms for bail. (Pollock & Maitland,
1898)
The 1689 English Bill of Rights set restrictions against excessive bail. This later inspired
the Virginia State Constitution and the Sixth and Eighth Amendments to the Constitution. In
1789, the Judiciary Act was passed, which not only gave outline for Federal and District Courts,
but provided that all “noncapital offenses” were bailable. Bail for capital offenses were left to the
discretion of the Judiciary.
Between 1789 and 1966, there was little change in United States bail law. It is between
these years that the privatization of bail bonds became a more viable option. This became
relevant as a means to relieve jail populations and ensure accountability of a defendant returning
to court with little to no financial burden on the State and Federal Governments.

In 1966, the United States Congress passed the Bail Reform Act, which allowed for the
release of a defendant with as little financial burden as possible. The commercial bail industry
had grown to encompass companies and even the requirements of financial institutions to back a
commercial bail entity. Regulations and law began to be developed by individual States to
regulate commercial bail bonds professionals. Ultimately, the commercial bail bonds system held
to the same standard; provide an inexpensive means of release and greater accountability with
less financial burden on the public.
The 1984 Bail Reform Act was established and replaced the original 1966 Act. This new
reform allowed for the release of higher risk defendants; but also, established bail hearings for all
defendants facing prosecution. This provided an even greater responsibility to the commercial
bail industry and encouraged greater relationship between bondsman, court and law enforcement.
The commercialization of the bail industry remained largely accepted in the United States and
was further regulated under Commerce and/or Insurance licensing and regulations.
If a defendant fails to appear to a court date, the bondsman will be given a demand to
either pay the full value of the bond to the courts, or return the defendant to custody. Upon this
failure to appear, the bondsman will begin investigative steps to secure the apprehension of the
defendant. Once the defendant is apprehended, the defendant will be surrendered to the county of
which the bond originated. If there was collateral received to secure the procurement of the bond,
the bondsman can apply any costs or fees against it. If a cosigner or indemnitor was also party to
the transaction, they will be called upon to uphold their obligation to the bond by either assisting
in locating the defendant, or issuing payment for any expenses or fees incurred because of the
failure to appear. (Tabarrok, 2004)

Because of misunderstanding and misinformation regarding the bail bond industry there
are many entities that have come to despise the private industry and actively seek to take the
process to a publicly run service. In the article “Facts Regarding the Commercial Bail Industry,
published by Accredited Surety and Casualty Company, Inc. on October of 2012, Melanie
Ledgerwood states, “Taxpayer-funded pretrial services programs continue their attack on the
commercial bail industry with an all-out call to eliminate the industry. These entities are the:
National Association of Pretrial Services Agencies (NAPSA), Pretrial Justice Institute (PJI),
Justice Policy Institute (JPI) and the American Bar Association (ABA).” (Melanie Ledgerwood,
2012). Infringement of rights, discrimination of wealth, regulatory violations by bail entities and
criminal activity by bondsmen are just some of the many allegations that the bail industry has
come under scrutiny for and further identified by this article.
The information provided by Melanie Ledgerwood in her “Facts Regarding the
Commercial Bail Industry” article, her statements that there are organizations attacking the bail
industry is not a new concept. In the 1978 law review by Dr. Virgil L. Williams of The
University of Alabama, titled “Nine Reasons to Go Slow on Bail Bond Reform”, The arguments
being made to support commercial bail bonds, as well as supporting the development of a strong
working relationship between court, bondsmen, bail enforcement and law enforcement is still an
effective argument over 30 years later. Dr. Williams further states on (page 11) ”Personal
recognizance systems [pretrial release programs] are established to provide relief for suspects
who cannot afford to use commercial bail bond companies; however, once established, personal
recognizance [pretrial release programs] is available to persons who might otherwise have
utilized the services of such companies. The outcome of implementing such reform is destruction
of a private industry with government usurping the functions previously performed by private

enterprise. The bail bond industry, like other segments of the private sector of our economy,
arose in response to a need for its services.” (Dr. Virgil Williams, 1978). Services that ultimately
relieve a significant financial burden to the State.
Publicly run pretrial release programs have been implemented in Wisconsin, Illinois,
Oregon and Kentucky because of legislative action being taken to have the State control pretrial
release services. In these States, the defendant is given the opportunity to be released on a
promise to appear, electronic monitor or a loved one can pay a percentage of the bail due, and be
held liable to the court if they fail to appear. (The Sentencing Project, 2015) These States have
seen a significant increase in crime and failures to appear as a result of the pretrial services they
utilize. (Brian H. Bornstein, 2011)
The Bureau of Justice Statistics has clearly presented these findings, and was best
interpreted best by Michael J. Whitlock, Executive Vice President for American Surety. In Mr.
Whitlock’s October 22nd
, 2012 article “Crime Increases Nationally”, he describes in detail how
the new Bureau of Justice Statistics data for the year of 2011 clearly show that with more public
intervention, restrictions and reform, crime has been on a rise and the accountability of a
defendant to return to court has decreased. It is in this article that Michael Whitlock summarizes
his professional belief “In my view the alarming increase in violent crimes is due, in part, to the
departure by many courts across the country from guaranteeing the appearance in court of
criminal defendants with a bail bond.” (Whitlock, 2012).
When a defendant is released on a pretrial release program, it is with a promise to
reappear to court and to be placed on a non-restrictive or restrictive supervision program. These
programs have included GPS monitoring, pretrial supervision/reporting, drug testing, house
arrest, chemical dependency treatment and various other options. At times, in these instances, the

courts can order for a defendant to pay 10% of what would normally have been the face value of
the bail directly to the courts. If, for whatever reason, a defendant fails to appear or violates a
term of release while released on one of these programs, the defendant will have a warrant issued
and the warrant will need to be served by the law enforcement of the State at the expense of the
public.
By definition and process, pretrial release options other than commercial bail, leads to
significant burden upon the court, State and law enforcement. For example, if an accused person
is released on any alternative to commercial bail, the burden and costs to locate the defendant fall
upon the State and law enforcement. The financial burden is the passed to the tax payer. (Cynthia
A. Mamalian, 2011) Most law enforcement agencies do not have the financial capabilities or
personnel to investigate the whereabouts of individuals’ fugitive status. This is most relevant for
any crime other than a felony. For those fugitives, the only opportunity of being located and
arrested is through routine law enforcement duties such as a traffic stop. Until capture, they
remain in the public, typically committing new or similar crimes in order to survive. (Bureau of
Justice Statistics, 2016) This not only jeopardizes the safety of the public, but further harms the
credibility of the Criminal Justice Systems that participate in these programs. (Tabarrok, 2004)
A fact to establish is that with the continued growth and popularity of pretrial release
programs, a substantial increase in cost and man power to operate those programs takes effect. In
a report that was completed on October 2011 by Dr. Mary T. Phillips on the effects different
release programs have on the accountability for a defendant to return to court, she establishes
that commercial bail bonds prove the most efficient option to secure the return of a defendant to
court while maintaining the financial wellbeing and safety of the public. This is done by the
bondsmen maintaining their financial accountability for the defendants return to court. If the

defendant fails to appear or violates their terms of release, the bondsmen will utilize their own
finances and expertise to seek and apprehend the defendant now fugitive. (Tabarrok, 2004)
Getting the defendant back into custody eliminates their ability to commit a new alleged crime at
no cost to the public.
Mary T Phillips, Ph.D. indicates in her report from the New York City Criminal Justice
agency, Inc., that failures to appear substantially increase when cash bail or pretrial release
programs are utilized for defendants. Her research shows that in a city such as New York,
failures to appear of defendants who post a bail through the services of a bondsman are almost
40% less, and the average defendant that fails to appear on a bondsman is returned to the custody
of the court 90% of the time. (Mary T. Phillips, 2011).
From 2005-2010 the Bureau of Justice Statistics, a division of the U.S. Department of
Justice, analyzed the recidivism rates of defendants released from jail in 30 States. From this
information, they created a tool that allows access to the information with varying search
paramotors. It was found that over 43.4% of defendants released without commercial bail, they
were rearrested in less than one year on new charges. (Bureau of Justice Statistics, 2016)
The Justice Policy Institute and the Pretrial Justice Institute are the most significant and
influential organizations in support of the elimination of a commercial bail industry. Their
arguments include “distortion of judicial decision-making”, “significant costs to tax payers”,
“financial influence of elected officials via contributions”, and “discrimination of low income
defendants”. (Pretrial Justice Institute, 2014)Though the Justice Policy Institute and the Pretrial
Justice Institute provides argument against the bail industry, and urges for the elimination of the
commercial bail bond industry, their information, in fact, supports the commercial bail industry
when looking at the information they provide, categorized appropriately. The research conducted

by the Justice Policy Institute focuses on failure to appear rates, recommit crime rates (pretrial
misconduct) and jail population sizes. They categorize a secured release option as a defendant
placing cash with an entity for release; while unsecured is categorized as a noncash option of
release, for example: GPS monitoring or a promise to appear. In their respective studies, the
Justice Policy Institute fails to separate commercial bail and cash bail paid directly to courts,
which gives an inaccurate account for success of either program. (Jennifer L. Truman, 2012)
The Justice Policy Institute does an excellent job in identifying the current issues facing
the commercial bail industry at a national level, and does identify recommendations for reform
that are universally agreed upon by the commercial bail industry. These recommendations
include transparency and full statistical data reporting by all States as well as courts and pretrial
service organizations working together.
The research conducted by Michael R. Jones of the Pretrial Release Institute provides
factual definitions and established the differences between a secured bond through a bondsman
and an unsecured bond by posting cash options to the courts or release on a promise to appear. It
is this study that shows there is no immediate difference initially when it comes to public safety
and secured versus unsecured bonds. The summary of Mr. Jones’s work: “Unsecured Bonds: The
as Effective and Most Efficient Pretrial Release Options” indicates that when looking at public
safety, secured and unsecured options of bail had no legal impact on a defendants’ criminal
behavior. (Jones, 2013)
Historically, when an unsecured release option is used there is still a higher failure to
appear rate (30%) than when a commercial bail secured option is used (18%). In the article
“Reducing Courts’ Failure to Appear Rate: A Procedural Justice Approach” it is clearly
documented how through a series of controlled studies, a variation of commercial bail bondsmen

working with court administrators, probation officers and law enforcement professionals offered
the most effective means of securing defendants return to court. The unique piece to this study is
how the bondsmen and courts establish reminders of court dates and various other methods of
holding defendants accountable. (Jones, 2013)
The greatest argument for commercial bail being utilized is the reappearance rates of
felony offenders. From 1990-2004 and being published in 2007, the U.S. Department of Justice
released a special report outlining failure to appear rates, pretrial misconduct rates, the
percentage of fugitives and rearrested fugitives. The study showed that 19% of defendants
released on a Surety Bond (commercial bail) remained in fugitive status when failed to appear
after 1 year. All other types of release averaged a 30-36% rate of defendants remaining in
fugitive status when failed to appear after 1 year. (Thomas H. Cohen, Brian A. Reaves, &
Statisticians, 2007) This makes the obvious argument that commercial bail provides a greater
accountability in securing the return of a defendant into custody when failed to appear. The most
attractive part to this study is that the option (commercial bail) that provides greatest
accountability is also at no cost to the public and supports the greatest overall safety to the
public. Taking this point further is to remember that if a defendant when failed to appear is not
returned, the commercial bail entity must pay the face value of the bond in most circumstances.
(Tabarrok, 2004)
Throughout the arguments one very important fact remains, there is a considerable
burden upon our criminal justice system. More people are being held in the custody of our jails,
burdening our States and law enforcement agencies, until they are either released while pending
trial or following the completion of a sentence. The cause of the growing $14billion annual

expense (Pretrial Justice Institute, 2014) is a result of State failing to utilize commercial bail,
which stimulates the criminal justice systems vicious cycle of arrest, release, violate and repeat.
Cash bail programs are often like an " out of sight-out of mind" mentality where the
defendant is forgotten until the following court date. In contrast, commercial bail bond
companies will often participate in finding resources or options for a defendant that is struggling
with addiction or mental health issues. Where the U.S. criminal justice system may order
hospitalization or treatment against the will of the defendant, the bail entity can provide
opportunity at the free will of the defendant, walking the defendant and accompanied loved ones
through the admission processes. The media has often reported that over 50% of patients within a
mental health treatment facility typically reside under court order. Less than 30% would have
voluntarily entered the program. Many of the court ordered population will relapse or fail their
treatment goals. Success rates have been proven far higher when someone voluntarily commits to
a treatment or mental health program. (M Douglas Anglin, 1998)
As more States continue their progressive transition to publicly run pretrial services and
away from commercial bail, there will most likely be a continued increase in annual costs and
jail populations. Commercial bail offers the most affordable option for release of a defendant in
pretrial while also providing the most effective means to locate the defendant upon failure to
appear, and all at no additional costs to the State.
The commercial bail system offers ongoing opportunities for the defendant to break the
cycle of addiction and help for mental health disorders, while limiting the likelihood a defendant
will violate their conditions of release and/or thus reduce the chance to commit a new crime. By
the defendant addressing the obstacles of continued habitual criminal activity, addiction, mental
health disorders, while also having an affordable means of release, the defendant has the greatest

opportunity for breaking the vicious cycle of the being in the criminal justice system. (Pretrial
Justice Institute, 2014)
Though the arguments have continued since the 1950’s that commercial bail is obsolete,
unconstitutional or discriminatory, when reviewing the evidence in its entirety, one truth
remains; commercial bail works. Through the involvement of the private bail entity, an accused
person has the greatest likelihood to be successful in rehabilitation, be less likely to commit a
new or same crime and will have the greatest chance of being located if they fail to appear. All of
this at no cost or burden to the State or Law Enforcement, because the commercial bail entity
bares full responsibility for any costs incurred by the State. Through the effectiveness of
commercial bail, less individuals would continue in the ongoing cycle of arrest, release and
repeat. As shown through data and history, the commercial bail industry remains to be the most
effective means of accountable pretrial release, at no cost to the tax payer and provides greater
success towards the reduction of habitual criminal behavior.

References
Bivins, T. (2006). Ethics in Public Relations: Responsible Advocacy. In C. B. Kathy Fitzpatrick,
Responsibility and Accountability (pp. 19-38). Sage Publications.
Brian H. Bornstein, A. J. (2011, May). National Criminal Justice Reference Service. Retrieved
from U.S. Department of Justice | Office of Justice Programs:
https://www.ncjrs.gov/pdffiles1/nij/grants/234370.pdf
Bureau of Justice Statistics. (2016, February 4). Recidivism Tool: Bureau of Justice Statistics.
Retrieved from Bureau of Justive Statistics Website:
http://www.bjs.gov/recidivism_2005_arrest/#
Council of Economic Advisers. (2015, December). White House. Retrieved from White House
Website - Topics and Issues :
https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_
brief.pdf
Cynthia A. Mamalian, P. (2011). State of the Science of Pretrial Risk Assessment . Pretrial
Justice Institute.
Helmut Kury, E. S. (2011). Punitivity: International Developments, Volume 2. Bochum:
Brockmeyer.
Jennifer L. Truman, P. M. (2012, October). Criminal Victimization, 2011. Office of Justice
Programs, U.S. Dapartment of Justice. Bureau of Justice Statistics. doi:NCJ 239437
Kennedy, E. M. (1980). A New Approach To Bail Release: The Proposed Federal Criminal Code
and Bail Reform. Fordham Law Review, 49(4), 436.
M Douglas Anglin, M. P. (1998, March 23-25). The Effectiveness of Coerced Treatment for
Drug Abusing. Retrieved from National Criminal Justice Reference Service:
https://www.ncjrs.gov/ondcppubs/treat/consensus/anglin.pdf
Mary T. Phillips, P. (2011). Project Director and Deputy Director. New York City Criminal
Justice Agency, Inc., Reasearch Department. Jerome E. . Retrieved from
http://www.cjareports.org/reports/releasetype&fta.pdf
Melanie Ledgerwood, D. o. (2012, October). Facts Regarding The Commercial Bail Industry.
Orlando, Florida. Retrieved from https://www.accredited-inc.com/pdf/news/com-bail-
facts.pdf
Pollock, S. F., & Maitland, F. (1898). The History of English Law Before the Time of Edward I.
2d ed. 2 Vols . Cambridge: Cambridge University Press.
Pretrial Justice Institute. (2014). The Problem: Pretrial Justice Institute. Retrieved from Pretrial
Justice Insititute Website : http://www.pretrial.org/the-problem/

Tabarrok, E. H. (2004, April). Public Versus Private Law Enforcement: Evidence From Bail
Jumping. The Journal of Law & Economics.
The Sentencing Project. (2015). Fact Sheet: Trends in U.S. Corrections. Washington D.C.: The
Sentencing Project.
Thomas H. Cohen, P., Brian A. Reaves, P., & Statisticians, B. (2007, November). Bureau of
Justice Statistics: Content: Special Reports. Retrieved from Bureau of Justice Statistics
Website : https://www.bjs.gov/content/pub/pdf/prfdsc.pdf
Whitlock, M. J. (2012, October 22). MCBA Executive Vice President - American Surety. Crime
Increases Nationally, p. 1. Retrieved from http://www.asc-
usi.com/blogentry.aspx?id=3867&category=Bail+Bond+Insurance
Williams, D. V. (1978). Nine Reasons to go Slow on Bail Bond Reform. Criminal Justice
Review, Volume 3, Issue 1, 9-16.

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