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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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