PRESCOTT – When a judge sets an amount for a defendant’s bail, the object is to choose the minimum amount that will ensure that defendant will continue to appear in court.
A special panel of experts on criminal law wants to scrap the current system of setting bail and imposing fines and replace it with one linked to a defendant’s ability to pay.
“Every year in Arizona, thousands of people are arrested and sit in jail awaiting trial simply because they cannot afford to post bail,’’ according to the report released Tuesday by the Task Force on Fair Justice for All. “While people arrested are protected by a presumption of innocence, if they lack the access to money, they often remain in jail.’’
Dave Byers, who chairs the panel created by Supreme Court Chief Justice Scott Bales, said that inability to pay has a financial cost on taxpayers, with the bill statewide for operating jails at $1 million a day.
That, he said, creates a spiral where people who are locked up awaiting trial lose their jobs and perhaps their homes. And Byers said there is evidence that people locked away for only two or three days are 40 percent more likely to commit a future offense than those who are arrested for the same crimes but released without bond.
What’s worse, he said, is there are people who are arrested for minor crimes who can’t afford the bail set — a bail often determined by the charge — who sit behind bars for far longer than they would be sentenced.
Byers said there are people who should remain behind bars who are multiple offenders or could be considered a danger to others. But because they have money or a “friendly bail bondsman,’’ they can easily make the $1 million bond that a judge set under the premise it would keep the person off the streets.
He said existing laws and constitutional provisions give judges only limited ability to deny bail. So the committee is recommending a constitutional amendment to expand that power.
Bail and bond
If you’ve encountered the words “bail” and “bond” enough in news coverage, they might seem to be interchangeable, but they really aren’t.
Although both “bail” and “bond” refer to money paid to the court to guarantee that defendants will come to court, bail is money paid by the defendant (or his friends or family) and it’s usually the full amount required.
That defendant has “bailed out” of jail.
Bond is paid by a bail bonds company, which makes a loan to the defendant or his family for the amount the court imposes. The bonding agent takes a house, vehicle, jewelry, or other collateral, as well as a set fee of 10 percent of the total.
The courts accepts a promise of payment from a bail bonds company because it guarantees it will pay the balance if the defendants forfeits the bond by failing to appear in court, said Brian Tickner, owner of Fitzgerald All-State Bail Bonds.
But what if the defendant does disappear?
Tickner said that isn’t common – he estimated that 90 percent of defendants out on bond do appear.
Deputy County Attorney Tom Stoxen said that, of the hundreds of cases heard each year in Yavapai County Superior Court, there are about 50 felony defendants who fail to appear when they’ve been released on bond.
When that happens, the bonding company is not necessarily on the hook for the bond money, Tickner said, because there is time between the defendant’s missed court appearance and the day a bond forfeiture hearing is set.
“If somebody absconds, there is a small window of time, before the bond forfeiture hearing, that you can recover the defendant, put him back in jail, and then you’d go to court” and try to convince the judge that, with the defendant back behind bars, the bond shouldn’t be forfeited, Tickner said.
But, bail bondsman John Otto said Arizona is not a “bail-friendly” state.
“If the defendant misses one court date … and then we bring him back to jail the next day, the courts can, and they have, forfeit the bond, even though we brought the person back to jail,” Otto said, which is different than most other states, where the bondsman has as long as six months or a year to return the defendant.
“It doesn’t give us incentive to find the person and bring him back if we’re going to forfeit the bond anyway,” he said. “I think the jail would rather have the money … a lot of time they give us a month to find him,” which isn’t enough time to locate someone.
Otto pointed out that, usually, police will find the defendant who failed to appear, given time.
And, while the percentage of absconders is pretty low, Otto said, the bail bondsman isn’t out any money when someone runs – it’s usually “Mom and Dad,” who put up their home or their vehicles to guarantee their family member’s appearance.