Your Word Is Your Bond

(Page 2 of 2)

Research vs. Money

Like Nagy, Jessica Zak began her career as a probation officer. Unlike Nagy, when Zak "jumped the fence" 13 years ago, it was to become a bail bond agent. "I love it; it's never dull," she says. Zak thinks bondsmen get a bad rap, thanks in part to the over-the-top image cultivated by reality TV star Duane Chapman, aka "Dog the Bounty Hunter." She sees herself more in the mold of Stephanie Plum, the bounty-hunting heroine created by writer Janet Evanovich – minus the explosions (of cars, of churches) that trail Plum through the pages of Evan­o­vich's mysteries. Zak carries mace and a Taser, and does get into physical struggles with bond-jumpers; occasionally she gets her ass kicked. But she has a bright attitude and laughs easily – even when describing an embarrassing dust-up with a defendant when both were blinded by mace.

That's what it takes, she says, to bring in the bad guys who decide they don't want to go to court, and when personal bond defendants jump bond, there's no one like Zak ready and waiting to bring them in. "They have so many people that should not get pretrial bonds," she says. "They run. A lot of people run," and when they run on a personal bond, "the county is out all of that money" – in pretrial, court, and police time resources – that it takes to find them and get them back. When folks run on a Zak bond – she says she has a personal failure-to-appear rate of around 5%, well below the county's – they have her to chase them, and the county isn't out any money, she says. "We pay the money; the county doesn't."

Zak says she does see a place in the system for pretrial personal bonds, though she believes it's a narrow one, best suited to low-level, first-time offenders. "If you're indigent and it's a small bond and you're not a repeat offender, by all means, give them a pretrial bond," says Zak, who runs Austin Bail Bonds and Austin Texas Bail Bonds. "That's what pretrial was derived for – indigent, first-time offenders. Not murder, not aggravated assault on a child."

If those latter folks are going to get out of jail before trial, it should be because they, or someone close to them, has something valuable riding on it, like cash or property, and a bondsman to watch over them, says Zak. The sentiment is shared by Jerry Watson, a longtime bond-industry lawyer and a lobbyist well known at the Capitol. Watson has been representing bond agents and their insurance companies for 45 years and, like Ken Good, works for AIA, which underwrites 20% of the nation's bonds. Watson does not mince words: Pretrial service agencies are glorified "free bail bond stores" operating with taxpayer money and posting poor performance rates to boot. Getting out on personal bond is like hitting pay dirt, he says. An "inmate will hear from other inmates in the jail ... 'Man, if you can get ... one of those pretrial release people to get you out, that's the way you want to go because not only will it not cost you anything, but if you don't go to court, nobody's going to come after you and nobody's going to have to pay for you,'" he says. Buy a bail bond, and the game changes; inmates know that's serious business, he says, because they know a bounty hunter is watching. "If you don't go to court, somebody's coming after you because they don't want to pay the bail money."

Moreover, when a defendant does forfeit a bond, the full amount of that bond (when ultimately collected, which can take months or more) goes into county coffers – whereas when personal bond defendants jump, the county spends its own money. Simply put, as Watson and Zak see it, commercial bail benefits taxpayers. (In some counties, the benefit is quite slow to materialize; in Dallas County, bondsmen owe at least $35 million in unpaid forfeitures, and in Harris County they owe a reported $26 million, according to research compiled by the Pretrial Justice Institute.)

While Nagy's staff may spend their time interviewing the defendant, Watson says bail agents spend their time interviewing the people who really matter in the situation: the folks who are putting up the money. "We don't go into the jail and interview them and try to do a risk analysis; we do our failure-to-appear analysis by interviewing other people," he says. "That is, we interview the people who make up the circumference of what I call 'the circle of love.'" The mothers and fathers, sisters and brothers, spouses and employers who've agreed to put up cash, "a title to a fast boat" or a "piece of property out there that they're running 10 head of cattle on that we've got tied up" in a bond note. Now that, he says, is motivation for the indemnifiers to get that defendant to court. "Now, let me tell you something: ... Pretrial services agency people don't have that, can't get it, don't know how to do it, and couldn't get it even if they did know how to do it. So this person, more often than not, is going to make his court appearances because of those people."

As a result, Watson claims over 98% of defendants released on commercial bail appear in court to stand "before the bar of justice." No pretrial agency can boast as high a success rate – and many, including Travis County, have tried to hide that fact from the public, says Ken Good. Good says they had to sue the county several years ago because it refused to release personal bond FTA and rearrest numbers. "When we got the reports, finally, after all of that," says Watson, "it was patently obvious to all of us why they didn't want us to see them. Their numbers stink." That applies to all pretrial agencies, Watson says, pointing to data in an annual report put out by the federal government that tracks FTA and rearrest rates for defendants released through five different channels, including commercial bond and personal bond. It's clear, he says, that commercial bail outperforms everyone else, "hands down."

Not surprisingly, pretrial service experts take exception to Watson's assertions. First, says Cherise Fanno Burdeen, chief operating officer for the Pretrial Justice Institute, a Washington, D.C.-based nonprofit that advocates for "informed pretrial decision-making," the government's reports do not show that commercial bail performs better than anyone, least of all personal bond agencies. In fact, she notes, the feds issued a data advisory in 2010 to clarify that point, "in reaction to the bondsmen using the data to assert that one form of release is more effective than another." The data collected by the government was meant for "accounting" purposes and not "to make effectiveness assertions," she notes. Travis County's most recent FTA rate and rearrest rate are at 10.5% and 14% respectively, says Nagy, and there is no record that can back up Watson's assertion that commercial bail has an FTA of just 2%. "The problem is that the bail bond industry worked to make sure that we have to report all [of our numbers] in a standardized way, while they don't have to report anything," she says. "I think this is something that is very, very important."

According to the county's court administration office, Austin commercial bonding agents, as a group, posted a 17% FTA in 2010. In an email, Watson wrote that while he cannot "address the specifics" of commercial bail FTAs in Travis County, he knows that AIA has a national average FTA of 8.3% and that over the years the bail agents writing in Travis County under AIA have never had an FTA anywhere near the numbers the county is reporting.

More to the point, notes Nagy, is that her office uses science to determine risk; bondsmen use only money. "The two things we have to consider are [FTA] and whether or not a person is a risk to the community. They don't make decisions based on that, but on whether the [person will be] profitable," she says. "They make decisions based on their risk – their financial risk." And that doesn't speak at all to public safety. A murderer with the cash to pay a bondsman will be released without any conditions, so how does that keep the community safe?, Nagy asks. If that person can be released with, say GPS, to ensure public safety, is that not better for the community? (Zak says that judges are the ones who ultimately order restrictions on a bond, and they can do that with a commercial bond just as easily as they can with a personal bond. That's true, says Nagy, but it's pretrial services and not the bondsmen who are tasked with monitoring those restrictions – and if the person does something they're not supposed to do, because they're under a private bond, pretrial services can't take any independent action to correct the situation.)

"Just because you have $10,000 doesn't mean" you're not a risk to the public, notes Nagy – and if you don't have that kind of money, or any money, without personal bond you could wind up sitting in jail. That, says Burdeen, isn't justice.

Watson doesn't buy it. "What about the poor soul who has nobody and is languishing over in the jail only because they can't buy a bail bond? That's a red herring," he says, "and some snake oil that the pretrial advocates are selling to the media and to public officials and public opinion leaders." Sure, the defendant may not have the full bail amount, or even a percentage, but bondsmen are nothing if not businesspeople, and they know how to cut a deal, including pay plans that suit any budget.

Money vs. Science

Terri Jackson was picked up last winter for obtaining drugs by fraud. She'd had a bad car accident in 2000 and didn't walk for nearly nine months. While in the hospital, she was given morphine. "When I was released," she says, "I was on nothing, and I spiraled in and out of trouble." In 2009 she moved to Texas from Michigan trying for a fresh start. Her drug habit followed her here, and she was finally popped after making a pill run to Houston. Although Jackson had never been in legal trouble in her life, and had plenty of folks to vouch for her character, those folks were in Michigan. But no one had any money to help her secure a bond, even on a payment plan. Jackson says that at first, pretrial services appeared poised to deny her as well – she believes it was because she had no real ties to Austin and had a drug habit to contend with – but once she found former Judge Baird, who agreed to take her case for free, she was granted the bond. Moreover, she was accepted into the county's drug court, a pretrial diversion program also overseen by Nagy's department. She graduated in 14 months, got a good job, moved to North Texas, and has remained clean. "Being arrested ... was enough to make me stay sober," she says. If she hadn't been granted personal bond, she feels strongly that she'd be doing time. "In all honesty, I'd be in prison right now."

In fact, research dating back to the early Sixties shows that defendants who are locked up pending trial are more likely to plead guilty, more often convicted, and more often given longer sentences, according to the Pretrial Justice Institute. "I think there's a greater assumption that you're guilty, and that [your crime] is more serious, because you've been in jail," says Nagy. "So the idea is, if you stayed in jail, you're [a] more serious [offender]. But in most places, you get out of jail with money. So being in jail doesn't mean you're more serious; being in jail means you don't have any money."

In that context, personal bonds and pretrial supervision are perhaps the great equalizer, and Nagy and others would love to see this become the norm in Texas. "You're ... talking about the justice system, and to me you also maintain judicial control of the process [through pretrial services]," says Nagy. "And really, it's not private enterprise that should have control over the criminal justice system."

If the commercial bondsmen of Texas have anything to say about it, they'll always be in the game – and, of course, they do have quite a lot to say. The bondsman lobby in Texas is robust; it contributes regularly and generously to political campaigns around the state, particularly in jurisdictions like Houston, where commercial bond is king. That's in part due to the county's direct-filing of criminal charges, says Carol Oeller, head of Harris County's Pretrial Services Agency. In Houston, a defendant can be released before ever seeing a magistrate, well before they can be interviewed by pretrial services. Because so many people use money bail, the folks left in jail are largely higher-risk individuals, so fewer people in Harris County (which also uses validated risk assessment) are actually released on personal bond. Oeller knows personally the power of the bondsmen, including the ones at AIA – one of several companies that sued her and the then-head of pretrial services personally in 1995, accusing them of cooking their FTA rate "to try to put them out of business," says Oeller. Nothing of the kind was happening, and the suit was eventually dismissed, but not before her boss won a counter­claim related to the assault on his character, recalls Oeller.

Under that kind of pressure, it may be an uphill climb for Travis County to become the preeminent face of pretrial release in Texas. First of all, there's the matter of figuring out how to uniformly fund pretrial services across the state. Some agencies, as in Austin, are set up under county probation departments and are eligible for state funding. But other offices are set up independently, and there is no current way to appropriate money for those jurisdictions. "I think that there's definitely movement, and it is about strengthening pretrial infrastructure. Educating people about pretrial – first, educating the county taxpayer on costs and what can be done through pretrial services ... and what are the components that we can legislatively pursue," says Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition. In other words, it's a multisession issue. But Nagy remains confident that in the end, science will – or at least should – prevail.

---

Reporting for this story was supported in part by a 2012 Journalism Reporting Fellowship sponsored by the Center on Media, Crime and Justice at John Jay College, with support from the Public Welfare Foundation.