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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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