Oregon State Bar Bulletin OCTOBER 2014
Representatives of the commercial bail bonds industry make no bones about it: They think Oregon would be better off to revert to the bail system the state ran before 1974.
“Absolutely,” says Jeremy Hubbard, a bail agent in Vancouver, Wash., corporate manager of A-Affordable Bail Bonds and president of the Washington State Bail Agents Association. Like other bail bondsmen across the country, he contends that a commercial surety bail system saves taxpayers money and protects public safety to a greater extent than a government-based system such as Oregon uses.
Hubbard and his colleagues may have a tough sell. An indication of that is that Oregon’s legal community and the state’s public safety system stand virtually united against going back to a commercial bail system. Such a move has been proposed in several bills in different years, most recently House Bill 2548 in the 2013 legislative session.
Although the United States is almost alone among nations to allow commercial bail bonds, 46 states use such a system. The remaining four, rather disparate states — Oregon, Kentucky, Illinois and Wisconsin — forbid bondsmen. What’s more, the Oregon Criminal Defense Lawyers Association and the Oregon District Attorneys Association both oppose bringing back bail bondsmen. Agreement is uncommon between these two groups on many issues. And in some other states, either or both of these type of practitioners may support having commercial bail, notes Gail L. Meyer, lobbyist for the Oregon criminal defense lawyers group.
“I am keenly interested in keeping bail bondsmen out of Oregon,” says John Henry Hingson III, a past president of the National Association of Criminal Defense Lawyers and a past president of the Oregon Criminal Defense Lawyers Association. The OCDLA likewise is against commercial bail, Meyer says.
“The Oregon District Attorneys Association is adamantly opposed to the return of bail to Oregon, for some very good reasons,” says Doug Harcleroad, executive director and a former Lane County district attorney. “We’re opposed to it because we’ve gotten a better system. We have a system that works.”
“The district attorneys association is opposed to going backwards in time, for all the reasons [a commercial bail bonds system] was abolished,” adds Joshua Marquis, district attorney for Clatsop County. “We’ve had robust discussions about that.”
The Sheriffs Weigh In
Although the dearth of law enforcement resources in many counties in Oregon has been spotlighted in the news media, law enforcement officers don’t see commercial bail as a solution, but instead something that would add complications.
“We do not support the bail bonds industry, and we haven’t ever supported the bail bonds industry,” says Sheriff Jason Myers of Marion County, who chairs the legislative committee for the Oregon State Sheriffs’ Association. “There are a lot of issues with bail bonds that we believe would jeopardize the system we’ve developed in Oregon.”
He says the association has looked at how bail bonds operate in other states and, as a result, has concerns such as violation of “individual rights, the training of bail bondsmen and how they operate in the community. It’s safe to say that we have confidence in our system,” and in the training and experience of professional law enforcement officers.
Aaron D. Knott, legislative director for the Office of the Attorney General, says the Department of Justice also remains opposed to the return of commercial bail bonds.
“I am reacting primarily to HB 2548 and cannot speak prospectively about legislative proposals which I have not seen, but I can state generally that HB 2548 left DOJ with very serious concerns,” he says. “We have worked tirelessly as a state to develop a system where decisions on all levels of the justice system are made via an evidence-based, deliberative process. Our system of pretrial release is no different.”
Knott also cites the potential for loss of judges’ discretion and revenue to the state as reasons not to endorse bail bonds. “It is badly out of pace with the careful strides we’ve made across the criminal justice system to allow our pretrial release process to be governed by financial incentives in lieu of judicially driven release decisions meant to address recidivism, victim protection and offender rehabilitation,” says Knott. “I also retain concerns that our system of restitution and the rights of victims may be subordinated under this proposal.”
Susan Grabe, public affairs director for the Oregon State Bar, explains that the statutory changes previously proposed by the bail industry would significantly reduce child support and restitution collected from criminal defendants; limit the court’s ability to protect the public through the use of release conditions; and increase the court’s workload while simultaneously reducing revenue. “These changes provide little of value to Oregonians that is not achieved by the current pretrial release system,” she says. “The bar strongly supports a criminal justice system that protects the public while ensuring victims and children receive the support they deserve.”
Scott Winkels, lobbyist for the League of Oregon Cities, says his organization opposed the most recent legislation, as well. “We would have some concerns about changing the system,” he says. “We had looked at some examples of how things work in other states. We weren’t overly impressed with what we saw.”
Winkels stresses that lobbyists make decisions about specific bills, and he never would rule out a bill without first examining its merits. But with the 2013 proposal, “the butcher, baker and candlestick maker” came out against it. “I never identified any public-safety interest in Oregon that was supportive of the concept.”
Washington bail agent Hubbard maintains that victims’ rights advocates “would love to see bail bondsmen” in Oregon, because under the state’s current system, victims are not getting assurance that the defendant will show up. They are much more likely to appear in court if they have put money down to the bondsman, he says.
But Rosemary W. Brewer, legal director for the Oregon Crime Victims Law Center, says she has not heard any organizations similar to hers endorse commercial bonds systems. “I can’t speak for all victims’ rights advocates, but I can tell you that personally I think Oregon’s system is better for victims than a private bail system would be.”
Oregon’s pretrial release system includes criminal fines, fees and assessments, which means a portion of what a defendant pays the court can be used for victim restitution if the defendant is found guilty. Brewer says restitution is hard to get no matter what, so at least Oregon’s system “does give the victim the possibility of restitution,” whereas under a commercial bail system, the percentage of bail paid by the defendant stays with the bondsman and never is returned to the court.
The 1973 Legislature abolished commercial bail and gave Oregon its current security release system beginning Jan. 1, 1974, Hingson points out (Oregon Laws 1973 c.836 §146). The American Bar Association’s standards on pretrial release served as the model for reform in Oregon. The ABA standards were developed in a joint effort by judges, prosecutors, defense attorneys, law enforcement officers and correctional officers, he says.
Oregon lawyers colloquially refer to Oregon’s system as “deposit bail,” because some defendants who are released must pay a 10 percent deposit of the total security release to the clerk of the court. But in Oregon’s statutes, the term “bail” technically is not part of the state’s pretrial release system; the term was purposefully “retired,” as lawmakers phrased it, to disassociate Oregon’s system from the connotations connected with commercial bail.
Doug Bray, trial court administrator for Multnomah County, says the legislature established the authority for the presiding judge of a judicial district to delegate release authority to pretrial release officers. The law also laid out three options for release from pretrial detention:
Security release, with a 10 percent deposit required for release.
Conditional release, a release without security, but on supervision and conditions.
Personal recognizance, a release without supervision but on conditions.
Advocating for Bail
Nicholas Wachinski, executive director of the American Bail Coalition, a trade group for the industry, says bail bondsmen have a place in every state because they provide the best bet that a defendant will show up for a court appearance and not flee, which he says protects the public and “certainly benefits law enforcement.”
In addition, Wachinski says, “We have a great relationship with defendants,” many of whom “come to appreciate our help. Bondsmen have been especially effective in getting drug and alcohol treatment if they need help.” He also maintains that states such as Oregon that don’t use bondsmen experience “tremendous jail overcrowding problems. We could be part of that solution.”
An investigative article in the May-June issue of Mother Jones magazine disputes that latter contention. “In 2011, Attorney General Eric Holder said commercial bail was a major obstacle to reducing inflated prison populations,” the article reported:
Of the nearly 750,000 people in America’s jails at any given time, two-thirds are awaiting trial. Of accused felons held until case disposition, 89 percent are there because they can’t afford bail. The American Bar Association, the National Association of Counties, the International Association of Chiefs of Police, the National District Attorneys Association and others have condemned commercial bail as a system that discriminates against the poor and places Americans’ liberty at the mercy of private businesses.
Hubbard says Washington bondsmen and bounty hunters have no jurisdiction in Oregon over defendants from other states who fail to appear in court. As a consequence, he says he knows anecdotally that Oregon has become a haven for “bail jumpers,” who potentially are in a position to commit additional offenses without having answered to their original charges.
Likewise, Oregon lobbyists James and Lynda Gardner, representing Aladdin Bail Bonds, argued in trying to pass the 2013 HB 2548 that the bill “would help address two serious problems that have plagued the Oregon criminal justice system for years” — a high failure-to-appear rate on the part of defendants, and “Oregon’s unique status as the only state in the nation that does not permit out-of-state bail recovery agents to operate within its borders.”
Like Hubbard, the Gardners claim that the latter prohibition creates a public safety hazard because it allows defendants from other states to flee here unlawfully. “There are no statistics on the topic,” James Gardner acknowledges, but he adds that Aladdin has reported many instances in which bail agents are told by officials in Oregon that the agents should not call into the state about fugitives.
The defense lawyers’ association’s Meyer contests the assertion that Oregon experiences a high no-show rate by defendants. “We really question their contention,” she says. “They won’t show us evidence.” Besides that, because appearance compliance is a county-based function, data on that are kept by each county, she adds. National statistics may come from states or jurisdictions within them, so Oregon’s numbers would be like comparing apples to oranges, she says.
Both proponents such as Hubbard and opponents such as Meyer agree that a major part of the controversy behind the issue of commercial bail versus a government pretrial release program revolves around which system offers the most protection, both to the public as well as defendants. Meyer says Oregon’s pretrial release statutes allow a lot of variability and discretion by a judge to weigh flight risk, except for Measure 11 crimes, which require a money deposit for pretrial release. Because Oregon jail management is a county duty, counties vary in how they handle decisions about release. Some do it through the local county jail under supervision of sheriffs’ departments, others through the courts. Some have formal pretrial release programs and staff, others do not.
Multnomah County trial court administrator Bray emphasizes that prelease trial services are dependent on adequate funding, and many Oregon counties have had to cut the amount of money going to them and are unable to afford pretrial release officers.
“That’s why you have such a wide difference on how each county approaches this,” he says. “Every circuit court in the state would like to have a pretrial release program staffed by one or more pretrial release officers, but in times of scarcity these positions are usually the first to go, and once lost are very difficult to replace.”
Sheriff Myers explains that Marion County uses risk assessment tools to determine each individual’s risk to commit a new crime, and then makes a decision based on that person’s charges and risk to re-offend to decide whether to release him or her by either requiring a deposit of the total security amount, to release on recognizance, or not to release.
“The big divide is, what’s the primary concern?” says defense lawyers’ lobbyist Meyer. “The primary goal of bail bondsmen is to make money. The primary goal of pretrial release programs is public safety.” Bondsmen work on commission and don’t lose any money if a defendant re-offends, only if the defendant doesn’t appear in court, she says.
The sole purpose of the commercial bail industry is to make money, adds the district attorneys association’s Harcleroad. “They’re not altruistic at all. That’s what insurance companies do.”
Resisting a Return to the Past
Criminal defense attorney Hingson entered law practice in 1971, three years before Oregon’s Legislature ditched the commercial bail system. He remembers what he calls “the bad old days” and the abuses of bail bondsmen in Oregon.
“The bail bonds system brings the potential for the corruption of the judicial system,” he says. “The bail bonds system has the real potential of polluting Oregon’s waters.” He cites that type of system as an “example of poor people getting milked of their money” by people “who focus on profit rather than on justice.” It’s “a way to make money off indigents accused of crime.”
Bail bondsmen “prey on poor people,” agrees prosecutor Marquis. There is not much incentive to bring back that system, except by those who would profit from it, he says.
“There are too many abuses with bail bonds and the possibility for corruption. I’m very opposed to privatizing public safety — bail bonds, private police or private prisons. ... In fairness, most people don’t have the historical memory” to recall what it was like before.
Raymond M. Rask does. A veteran trial lawyer, he was admitted to the Oregon bar in 1961 and handled a number of criminal defense cases throughout the 1960s. During that time, downtown Portland hosted both a district court and a municipal court, the latter for criminal cases.
“It was a zoo down there, a madhouse,” he says of the municipal court. “Bail bondsmen running around trying to find lawyers” they could pay a few dollars to to ensure that defendants showed up in court, even if those lawyers weren’t representing the particular clients the bondsmen sought.
The atmosphere was “anything but professional,” Rask says. “It would be a travesty” to return to a bail bonds system, and it “would lower the dignity and professionalism of the courts down to the gutter again. I am unalterably opposed to returning to a bail bonds system.”
According to the Justice Policy Institute, which advocates for the abolition of for-profit bail, approximately 15,000 bail agents work in the United States, writing bonds for about $14 billion annually. The industry does an estimated $2 billion in revenue annually and is supported by about 30 insurance companies that underwrite them. The institute says the bail industry conducts multimillion dollar lobbying efforts to “attack and defund” pretrial services and increase profitability by reducing regulation and financial risk.
“Backed by multibillion dollar insurance giants, the for-profit bail bonding industry maintains its hold in the pretrial system through political influence,” says Spike Bradford, senior research associate for the institute. “The industry’s political influence also perpetuates the use of money bail instead of other alternatives that allow people deemed low risk of re-offending or failing to appear in court to remain free until their trial.”
The institute singles out Multnomah County as having a model pretrial release service.
In a 2010 report, NPR noted that the regulation of bail agents varies widely across the country. Many, but not all, states require bondsmen to be licensed. To receive a license, agents generally must undergo eight to 16 hours of training, submit to fingerprinting and a background check, and be a resident of the state. Washington state requires bondsmen to obtain licenses from both the departments of insurance and licensing, undergo a specified amount of hours of training and submit to a background check, Hubbard says. All bail bondsmen carry guns, too, he adds.
NPR calls the bail bonds system one that:
rewards the wealthy and punishes the poor. It exists almost solely to protect the interests of a powerful bail bonding industry. The result is that people with money get out. They go back to their jobs and their families, pay their bills and fight their cases. And, according to the Justice Department and national studies, those with money face far fewer consequences for their crimes. People without money stay in jail and are left to take whatever offer prosecutors feel like giving them.
Portland victims’ right advocate Brewer, a former prosecutor, says the jurisdictions she previously practiced in, Baltimore and Atlanta, where commercial bail existed, were “rife with corruption.”
The Justice Policy Institute states in a report:
That for-profit bail bonding introduces money and profit into the pretrial process and gives bail agents complete control of an accused person’s liberty has led to numerous instances of abuse and corruption in the industry. Cases abound of bondsmen bribing jailers and inmates for increased access to potential clients, employing brutal and illegal methods to extort money and information, and even using their extralegal powers to coerce people into sexual acts.
Preparing to Make Their Case
The industry recognizes and acknowledges that it has an image problem. Hubbard’s A-Affordable Bail Bonds is a member of ExpertBail, a national network of bail agents created by AIA — the largest group of bail bond insurance companies — to try to repair public perceptions. ExpertBail bail agency members must follow “established professional standards of integrity and conduct,” its website states, adding:
When people run into life’s unpredictable moments, we know they need comfort and direction. They need an expert to help them navigate the unfamiliar bail bond process. We are here to help. You can be confident that when you choose an ExpertBail agent, they will do just that. Our agents will go above and beyond any expectations you may have to make sure you and your loved one are taken care of.
ExpertBail agents probably aren’t who you expect. They don’t have mullets or wear bulletproof vests. They don’t run through alleys or jump over parked cars leaving a trail of destruction behind them. ExpertBail was created to separate the high-quality bail bond agent from the low-quality bail bond agent. ...We want to educate the public on how we support the criminal justice system and increase public safety. ...We want to spread awareness about the positive side of bail bonds. After years of being misrepresented by the news media, the movies and a few bad apples in the industry, we have finally had enough. Hollywood has made billions of dollars by positioning bail bond agents as delinquents, scumbags and criminals. This is not the case, and we want to set the record straight.
Oregon’s legal community is bracing for the 2015 session, when it expects the commercial bail industry will return to the legislature to argue once again for changing the state back to bail bonds. “It’s going to be a big deal,” says Marquis. “It was a big deal in the 2013 session.”
The American Bail Coalition and its lobbyists “came close to re-legalizing” bail bondsmen in the 2013 session, according to the article in Mother Jones, which says the organization “spent $250,000 to promote the idea.”
Marquis thinks some legislators are in favor of changing Oregon’s system and that the arguments the bail bonds industry uses “can sound reasonable.” But lobbyist Meyer says, “I never saw a legislator adopt this issue and own it. There was an odd sense that people who would be opposed are not saying anything.”
Opponents of commercial bail might presume that because the attorney general’s office and the state’s associations representing lawyers, as well as many other organizations such as the sheriffs’ and cities’ associations, oppose reverting to that system, proponents stand little chance of success. Meyer doesn’t buy that proposition.
“I take this industry very seriously,” she says. “Now that it’s backed by surety companies, it has bucks.” Even in some states where the entire array of public safety agencies was against it, she says, bail bonds legalization legislation still passed anyway.
ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin. Reach him at firstname.lastname@example.org.
© 2014 Cliff Collins