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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. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  2. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  3. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  4. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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