Monday, December 26, 2011

Bail and Bonds

New York Governor Andrew Cuomo just vetoed a bill that allows charitable groups to post bail and bonds for incarcerated defendants. 

That doesn't seem in the Christmas spirit does it?

The point of bail is not to punish, but to make sure the defendant appears for all court proceedings.  The judge can consider the following factors when analyzing bail:

1) the defendant's character and mental condition,
2) employment and financial resources,
3) community ties,
4) criminal record,
5) prior failures to appear in court or warrants,
6) the weight of the evidence against him, and
7) the sentence he's facing.

Bail exists because a person is more likely to return to court if they have a significant financial reason to do so.  If the defendant doesn't show up to court, the money he puts at risk to gain freedom is forfeited.  Otherwise, what's to stop the defendant facing twenty-five to life from running to Columbia?

The primary types of bail are cash, bond, or property.  An example will explain all three.  The judge orders the defendant held on $100,000 bail.  The judge also says the defendant can post that money in the form of cash, bond, or property.  For the defendant to secure his release he must post $100,000 cash which the court holds until the case is completed. 

He can also apply to a bail bondsman.  The bondsman will post the $100,000 and in exchange the defendant will pay a non-refundable fee.  The fee is usually ten percent of the total.  In our example, the defendant would pay the bondsman $10,000, and the bondsmen would put the $100,000 at risk.  The $10,000 is the bondsman's fee for risking his $100,000 if the defendant doesn't return to court.

Property means that the defendant can use real property as collateral, if they have enough equity in the property.  He can pledge his $120,000 house to make bail.

The charitable groups discussed in the article act like the bondsman.  They agree to put up the money for the defendant's release.  The problem is that they do not seek anything in return.  The defendant has no financial stake in returning for court proceedings.  If he fails to appear, the defendant does not lose anything because he never posted anything.  This brings us back to the reason for bail in the first place.

On top of that, the charitable groups are not regulated and licensing is not required.  We can see the pitfalls.  What is to stop a group of drug dealers from raising money and placing it in a charitable group whose purpose is to bail out those who get arrested?  Now only the charity is connected to the money.  Money raised through crimes can be laundered through charities whose sole purpose is to free the people who illegally raised the money in the first place.

I am not against a form of this bill.  A staggering number of defendants remain in custody on minor charges who cannot afford even $500 bail.  A lot of these defendants receive non-jail sentences at the conclusion of the case.  The legislature needs regulate and license these groups, however.  Otherwise, abuse and fraud will reign.

This also raises the question of whether lawyers should be allowed to bail out their clients.  Looks like a conflict of interest, doesn't it?

1 comment:

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