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57 Fed. Probation 9 (1993)
Bail Bondsmen and the Federal Courts

handle is hein.journals/fedpro57 and id is 11 raw text is: Bail Bondsmen and the
Federal Courts
By JAMES G. CARR
United States Magistrate Judge, Northern District of Ohio

ECTION 3142(c)(1) of the Federal Bail Reform
Act of 1984' lists the conditions that may be
imposed on a defendant in order to secure re-
lease pending trial. Some of these conditions restrict
the defendant's freedom of movement; others seek to
control his activities, and others may cause treat-
ment to be provided. A court may, as well, require
financial conditions, such as a cash bond, property
bond, or, pursuant to § 3142(c)(1)(B)(xii), a bail bond
with solvent sureties in such amount as is reason-
ably necessary to assure the appearance of the de-
fendant.
The continued authorization in the Bail Reform Act
for Federal courts to accept surety bonds or, as they
are more commonly called, bail bonds, is an anomaly
in a statute that otherwise incorporates many com-
mendable reforms. Inclusion of bail bonds as a means
of securing a defendant's appearance is, moreover,
inconsistent with the express command of § 3142(c)(2)
of the Act, which states that the judicial officer may
not impose a financial condition that results in the
pretrial detention of the person.
According to statistics compiled since 1987 by the
Administrative Office of the United States Courts, the
use of corporate surety bonds is 50 percent less fre-
quent than 5 years ago.2 Nonetheless, bail bondsmen
remain active in several Federal courts: During the
year ended June 30, 1992, bail bonds were a condition
of release in 2,497 cases.3 Although nearly 70 percent
(1,721) of those bonds was imposed in just three dis-
tricts,4 nearly three-quarters (570) of the other 776
bail bonds was imposed by 17 districts.5 During the
same period, bail bonds played no role whatsoever in
pretrial release decisions in 31 districts6 and a negli-
gible role in the other districts.
Some districts with sizable criminal caseloads, such
as Illinois Northern, Michigan Eastern, New York
Eastern, New York Southern, and Pennsylvania East-
ern, either have abandoned the use of bail bonds or set
such bonds very infrequently.7 On the other hand,
other districts with similarly large numbers of serious
cases, including California Southern, Florida Middle,
Florida Southern, New Jersey, Texas Northern, Texas
Southern, Texas Western, and Virginia Eastern, use
bail bonds with considerable frequency. There is, how-
ever, nothing in terms of caseload size, and appears to
be nothing in terms of the likely nature of that
caseload, to distinguish districts where bondsmen
either play no role or an insignificant role from those

in which bondsmen remain active. A review of statistical
profile records reveals no discernable difference in of-
fense charged, offense level, prior record, or arrest status
between those districts using bondsmen and those that
do not use bondsmen.8
Tw'o possible explanations for the continued presence
of bail bondsmen in those districts in which they remain
active are: (1) magistrate judges, who are responsible for
setting conditions of release, and district judges, who
review release and detention orders, use corporate sure-
ties uncritically on the basis of local custom and practice,
or (2) judicial officers believe that bondsmen will locate
and return a defendant who absconds. Another explana-
tion may be that pretrial services officers (or probation
officers in those districts in which there is no separate
pretrial services agency) likewise are merely responding
to local custom and practice when they recommend
surety bonds.
The purpose of this article is to encourage all Federal
courts to eliminate the use of corporate surety bonds as
a condition of release. Its theme can be stated straight-
forwardly: Corporate surety bonds fulfill no function and
provide no service that cannot otherwise be accom-
plished within the framework of the Bail Reform Act.
This is a theme that has been asserted repeatedly and
unanimously by others who have examined the opera-
tion of the bail bond system. One critic of the bail bond
system wrote in 1965 that 'Experience has amply shown
that the bondsman's few legitimate functions can be
filled better by other agencies. The 1968 American Bar
Association Standards Relating to Pretrial Release
stated, 'The professional bondsman is an anachronism
in the criminal process. Close analysis of his role indi-
cates he serves no major purpose that could not be better
served by public officers at less cost in economic and
human terms.'° A 1976 study of bail reform concluded
with the view that surety bail does not perform any
useful system function. The 1980 version of the ABA
Standards for Pretrial Release, which called for abolition
of surety bonds, restated the view that commercial
bondsmen appear to be largely ineffective.12 Law review
commentators have agreed that the bondsman lacks
contemporary functional utility3 and it is difficult to
ascertain any contribution of the commercial surety to
the criminal process.14
In theory, the bail bondsman accepts payment
from the defendant of a portion of a cash bond
(usually 10 to 15 percent). If the defendant fails to

Vol. 57, No. 1

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