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Dispute over bail bonds likely to produce a legislative solution

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Growing tension between the bench and bail bond agents has been shoved into the spotlight at the Statehouse and could be the subject of bills introduced during the 2014 session of the Indiana General Assembly.

Central to the disagreement is the increasing use of cash bonds by judges. Courts are ordering defendants post a cash bond instead of requiring them to go to a bail bond provider and get a surety bond.

Bail bond agents charge judges are unfairly competing against their businesses by accepting only cash bonds and issuing those bonds at a significantly lower dollar amount. The motivation behind the move toward cash bonds, bail agents claim, is courts are using the money as revenue to support their operations.

The bail agents have found a sympathetic ear in Sen. Brent Steele, R-Bedford.
 

steele-brent2012-mug Steele

“I think that the defendant ought to have the right to post the surety bond if he wants to,” Steele said. “For a judge to say, ‘We’re just going to do cash only,’ I don’t agree with that.”

Steele has added the bail surety issue to the summer study agenda of the Legislature’s Commission on Courts. In addition, he has hinted he may author a bail bill during the next session.


earline Rogers

His colleague, Sen. Earline Rogers, D-Gary, also has plans to introduce her own bail bill next January.

The inferences made by the bail bond agents drew a strong response from one judge, which may indicate the opposition to come.

“When they say we’re using cash bonds to fund court programs, that’s absolutely false,” said Hendricks Superior Judge Robert Freese. “It is not a slush fund.”

Adding to the agenda

During the 2013 legislative session, Rogers authored Senate Bill 425, which, in part, would have allowed counties to retain a portion of the funds they received from bail bond forfeitures.

Bail bond agents in Rogers’ district had approached her, asserting the courts were not forfeiting bonds and that money was going uncollected. She proposed funneling some of the forfeiture dollars back to the counties as an incentive to judges to go after those funds. Also, to streamline the process, she shortened the time a bail bond provider has to present a defendant who failed to appear from 365 days to 180 days.


freese Freese

“All I’m saying is, if there’s a percent of this uncollected money that’s out there and counties can use it to deal with the criminal justice system, which is causing a burden for the finances of the county, then we ought to find a way to use it,” Rogers said.

After SB 425 died in the Committee on Corrections and Criminal Law, Rogers authored Senate Resolution 69, which asked the Legislative Council to assign the topic of surety bail to the Criminal Law and Sentencing Policy Committee for study during the 2013 legislative interim. When the topic went unassigned, Rogers approached Steele.

The Republican has seen bail issues pop up only a few times during his 17 years in the Legislature and thought the topic deserved some attention. He focused the commission’s first foray into bail bonds on the different types of bonds being used, an area he is particularly bothered by.

Steele compared the use of cash bonds to the days when Indiana only had fault divorces. Consequently, couples who simply wanted to end their marriage had to offer the court an accepted reason, which usually was that the husband had abused the wife.

“… It was a lie under oath that the bar association and everybody fostered and did,” Steele said.

He charged Indiana has a similarly false system with bail bonds. Current practice, Steele said, is for the judges to write a cash bond to cover the costs because the courts know many defendants will not be able to pay their fines and fees.

“It’s a way we grease the gears to make the system pay, and it’s wrong,” Steele said. “I think the pure system, the purest, would be the judge sets the bail and that defendant ought to have the right to post whatever kind of bail he wants to. If he wants to do surety, fine; if he wants to do cash, fine; if he wants property, fine.”

Cash or surety

Pointing to his phone, Jim Degan, president of the Indiana Surety Bail Agents Association, Inc., outlined the bail bond agents’ arguments against the current system.

Every Friday, Degan requires the defendants he has bonded to report in, telling him where they are and what they are doing. He, like most bail bond agents, monitors the defendants, reminds them of their court dates and, if a defendant does abscond, works to find them.

Conversely, when a judge issues a cash bond, the court collects that money and no one follows through with ensuring the defendant appears again, Degan said.

Freese defended his practice of issuing cash bonds. If the prosecutor never files the case or the case is dismissed, the full amount will be returned to the defendant. If the defendant is convicted, then the funds will go toward covering the court costs, fines and fees.

Whether the bond is returned or used to help cover court costs, the defendant should then have money to pay household expenses, the judge said. People are spending too much on the justice system, and the consequence is they then do not have enough money to meet their other financial obligations, he added.

With bail surety bonds, Freese explained, the 10 percent the defendant pays is kept by the bail agent regardless of what happens. The defendant will have to find more money to pay any fines, fees and court costs that are assessed.

“That’s correct,” Degan said, “because it is a premium like you pay your automobile insurance or your homeowner’s insurance. The judge feels that the money should be used to pay court costs and everything else. We’re not allowing the defendants to pay with the surety. There should be some suffering and consequences for their actions.”

In Freese’s 13 years on the bench, he said he has never had anyone fail to appear that resulted in a forfeiture. Often defendants have made a simple error, like getting the court date wrong, and are not intentionally trying to skip bail.

Consequently, the push by bail bond agents to get the courts to go after uncollected forfeitures confused Freese. To him, that runs counter to the agents’ argument against giving money to the courts to use for judicial programs.

Moreover, Freese said, the courts are not responsible for claiming money. Such actions would turn the courts into collection agencies.

Degan maintained the judges who do not forfeit bonds deprive the common school fund and the sheriff’s pension fund of money. The funds from cash bonds sitting in county coffers puts the county at risk if the Indiana State Board of Accounts runs an audit and demands the money, he said.

To resolve the differences between bail bond agents and judges, the Legislature is going to have to get involved, Degan said. However, any solutions offered should be carefully considered.

“We’ve got a great statute,” he said. “It just needs to be tweaked a little bit. We do not need to do a house-wide clean up.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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