Your Word Is Your Bond

It's just before 9:30am when Austin muni­cipal Judge Ron Meyerson dons his black robe and heads through a remotely locked door into a cinder-block-walled courtroom tucked into a basement corner of the Travis County Jail. This is the magistrate court, where the newly arrested are brought in a group for their first meeting with a judge.

Meyerson takes his seat, above rows of chairs filled with more than two dozen men and women dressed in gray stripes and locked together in pairs with pink handcuffs, and delivers a speech he's honed to near perfection during nearly two decades on the job. You're being held in jail, he begins, because you've been charged with a crime. You have not been convicted and are presumed innocent.

As usual, this morning's charges run the gamut – from a hungover, college-age guy on a public intoxication charge, to a man held on two counts of second-degree aggravated assault after an alleged attack with a tire iron. Meyerson calls each name in turn, reads aloud the pending charges and asks three questions: Do you understand? Do you have any questions? Do you need a court-appointed attorney? Everyone says they understand; three people have questions; about half request appointed counsel.

Meyerson is among six full-time municipal judges who act as gatekeepers for the county's criminal justice system. It's a job he loves and takes very seriously. "I screen cases for probable cause; I release people," he says. Importantly, Meyerson sets bail, and explains to the defendants before him the four legal ways they can get out of jail: by posting the total amount of bail in cash; by contracting with a bail bondsman, typically paying a percentage of the bail amount; by hiring an attorney; or by being approved for a personal bond.

Ultimately, if the 26 people sitting in front of Meyerson this Friday morning in mid-August are typical of the tens of thousands of defendants who enter the county's criminal justice system each year, many of them will use one of these avenues to get out of jail while the charges against them are pending. The "pretrial" period typically spans several months, but depending on the charge, it can at times extend into years. And many of these defendants, perhaps the majority, are likely to qualify for a personal bond – meaning they'll be judged a good risk to go home on a promise to return to court when scheduled, and to avoid being arrested until the pending charges can be adjudicated.

Who Gets Out?

Legally speaking, the only factors that can be considered when setting bail are a defendant's flight risk – which affects the administration of justice – and whether that person, if released, would pose a threat to public safety while awaiting adjudication. Deciding who will return to court and won't commit any additional crimes in the interim is, to varying degrees, a guessing game. Historically, money has been used as an admittedly imperfect hedge against risk. Defendants who can't make bail – even a portion of it, even on a first-time offense or on the most minor of charges – can wind up sitting in jail until their cases are resolved, at great cost to themselves and to taxpayers.

As of Sept. 1, nearly half of the more than 67,000 jail inmates statewide were being detained pretrial. In 2010 alone, pretrial detainees cost U.S. taxpayers roughly $9 billion, according to the American Bar Association – and that figure does not address the collateral damage to defendants and their families.

In Travis County, court officials say they're working hard to make pretrial detention the exception and not the rule. Dr. Geraldine Nagy is director of the county's adult probation and pretrial services department; if a plan she devised succeeds this fall as planned, the number of defendants released on personal bond, with or without ongoing direct supervision, may increase – while still ensuring court appearances, maintaining public safety, and in theory saving the county millions. In fact, Nagy would like to see the Travis County system for pretrial release and supervision become a jewel of the county's criminal justice system and a model for the state in saving money, effectively managing risk, and encouraging just outcomes.

"You don't want to become a bleeding heart and have people out in the community who need not be out," Nagy says. "That's not the deal. What you want to do is be able to sort through and effectively determine who should be out in the community. There is an opportunity here for justice that is greater than at any other point in the process."

But Nagy's enthusiasm for the expansion of personal-bond pretrial release services is not shared by everyone – least of all by those in the state's commercial bail industry. Industry advocates argue that pretrial release agencies pose a public safety risk, because they release thousands of people who have no real skin in the game. The bondsmen say the money put up by defendants and their families does a better job of ensuring that defendants appear in court and stay out of trouble than does any promise made to a pretrial release agency.

Moreover, bondsmen see attempts to expand pretrial service agencies as a grave threat not only to public safety but also to their financial survival – and they're not going down without a fight.

Who Stays In?

The Eighth Amendment to the U.S. Constitution explicitly bans the imposition of excessive bail – though where that line is drawn is a matter of debate. Except in limited circumstances, the Texas Constitution follows suit, mandating that bail will be set for "all prisoners." In fact, asserts Ken Good, a Tyler attorney and the Texas counsel for Allegheny Casualty, International Fidelity and Associated Bond (AIA), a major player in the insurance-backed bail bond industry, the Texas Constitution goes further than just ensuring bail is set. Defendants "shall be bailable by sufficient sureties," reads the text – a detail that Good says is key to understanding the landscape of pretrial release in Texas. "I think our Texas Constitution was written on a basis of private [monetary] bail," he says, not on a get-out-of-jail-free card.

The time-hallowed concept of money bonds is simple. A person is arrested – say, on a misdemeanor marijuana possession beef – and bail is set at $1,000. The defendant doesn't have the grand in cash – nor does his family or friends – but together they can come up with $100, 10% of the total amount. A bondsman accepts that $100 as a promise on the $1,000 (on larger bail amounts, collateral is often required), and the bondsman secures the defendant's release. If the defendant makes every court appointment and avoids arrest until the case is resolved, he'll remain out of jail, the bondsman will keep the $100, and no one will have to pay the remaining $900. It is a simple system that benefits both defendants and government, bail industry advocates say.

But it isn't perfect. Not everybody can find the cash to hire a bondsman, advocates of personal bond services counter, and the cost of housing defendants who haven't been convicted of anything is high. In Travis County it costs $105.61 per inmate per day, according to Sheriff's Office spokesman Roger Wade; as of Sept. 1, according to the Texas Commission on Jail Standards, there were 1,292 pretrial defendants (56% of the jail population) sitting in the county jail, at a single-day cost of $136,448.

Indeed, it was in part jail overcrowding that led to the rise of pretrial services agencies. Judges had the power to grant personal bonds – that is, solely on the personal promise of the accused to appear in court – but in Texas' politicized and partisan judicial landscape, judges are often wary of the risk of releasing a person who could possibly hurt someone while out awaiting trial. From the combination of judicial nervousness and pressure (often court-ordered) to reduce jail populations, Texas' pretrial service agencies were born. While the agency model differs from county to county (some do without), Travis County's program is widely considered one of the most robust personal bond offices in the state, both by supporters of personal bond release and by critics in the commercial bail industry. To former district Judge Charlie Baird, personal bond is an important part of the pretrial landscape. "It allows people who are presumptively innocent to get out and not just to continue to work, to provide for themselves and their families, and to help their lawyers prepare a case, but it also saves the county millions a year," he says.

In 2010, Nagy's pretrial services staff screened more than 40,000 defendants in the Travis County jail, to determine who might be eligible for a personal bond. Only a discrete class of defendants is automatically ineligible – including those charged with capital crimes and those who've violated parole or forfeited a previous bond. In all, roughly 32,000 of those screened made it to a full-fledged pretrial investigation, for which staff collects references, conducts a background check, and considers a variety of issues – including employment status and family support – that might suggest whether a defendant will show for court or be rearrested. The agency then makes a recommendation to the courts about whether the person should be granted a personal bond. In 2010, 63% of defendants released pretrial were released on personal bond. That same year the agency posted a court failure-to-appear rate of 13% and a rearrest rate of 14%, according to annual reports the agency is required to file. In contrast, that same year defendants released on commercial bond failed to appear in court 20% of the time, according to information collected by Travis County.

Nagy believes the FTA and rearrest numbers will shrink with the introduction in November of a research-based risk-assessment tool, designed and validated specifically for Travis County defendants, in order to help her staff more objectively determine a person's likelihood of success if released on personal bond. "That's really consistent with all the research on decision-making. ... These tools do significantly better than just the person" making a decision, Nagy says. "Making a pretrial decision without risk assessment is like playing golf in the fog."

Considered a "best practice" nationwide, the use of research-based, locally validated assessments that group defendants into low-, medium-, and high-risk categories is still relatively rare. In a recent survey of agencies across the state, the Texas Criminal Justice Coalition found just two – Travis and Harris Counties – that said they are using a validated risk assessment tool. Nagy is a firm believer that using a RA tool will improve public safety and positively affect defendants' lives. She says she'd love to see "every community have a strong pretrial services program" using validated risk assessment, and she hopes Travis County can help lead the way in Texas. Science, she says, is on her side.

The Right Questions

Nagy began her career as a probation officer in Bastrop, and did statewide and national work on probation issues before returning to Travis County about eight years ago to run the county's probation department. She's since turned that program into a nationally recognized model, in part for her use of validated risk tools to effectively determine how to manage the thousands of probationers who enter the system each year.

While remodeling the county's probation department, Nagy resolved to do the same for pretrial services. Her staff tracked the experiences and case outcomes of more than 1,000 county defendants over a period of 2½ years. That data was analyzed by Ed Latessa, director of the Division of Criminal Justice at the University of Cin­cin­nati, and was returned to Nagy in the form of a seven-question survey. With weighted answers, the seven questions can effectively rank people by their level of risk to abscond or be rearrested. That information in turn helps Nagy's staff – and ultimately the judges to whom they report – to decide who should be released on personal bond. "You get a score, and based on that score, you're classed into one of three groups. And based on the data, each of those three groups has a level of recidivism," explains Nagy. Low-risk people, without complicating factors, are mostly likely to be released without any conditions – and Nagy suspects that with the new risk tool, more low-risk Travis County defendants will be released from jail on a personal promise to stay straight and fly right. Defendants in the medium- and high-risk groups may still qualify for personal bond release, but likely with additional restrictions – like GPS monitoring, drug testing, daily calls to a case manager, or even house arrest. Of the more than 19,000 defendants released on personal bond last year, 6,890 were released with some sort of restriction.

While Nagy's staff has long used a more intuitive battery of questions to categorize defendants, the new analytical tool is designed to help Nagy's staff ask the right – and more reliably predictive – questions of defendants. Do you have a job? Housing? Have you failed to appear in court before? Do you have a substance abuse problem? At the same time, several long-used considerations are no longer used – including whether the person has lived in Travis County for more than a year, and the nature of the criminal charge. As it turns out, with the exception of four charges (murder, rape, robbery, and car theft), the offense a person is charged with is not predictive of future behavior. But the age at which a person was first arrested is in fact "a very high predictor of recidivism in any setting," says Nagy. "The younger a person is arrested in life, the riskier they are. It's one of the most sound predictors of recidivism." Latessa says that recommendations for release based on the validated risk assessment take subjectivity out of the decision-making process and place it in the hands of the science. "The tool is neutral; it doesn't care if you're rich or poor, black or white," he says.

What is not a predictor, surprisingly, and what is not asked about on any valid RA tool, experts say, is whether a person has, or has access to, money. "What's happened is the attachment to money bond in our culture [leads] some people to think that money has some" correlation to risk, says Nagy. "And it absolutely doesn't."

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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.

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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.