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Preserving Private Surety Bail

The private surety bail industry has a long and historic partnership in the criminal
justice system. The purpose of bail is to ensure the appearance of the
defendant in court and to enhance public safety. Private surety bail has done
this for generations in the U.S. with an astounding record of reliability and
accountability at no cost to the taxpayer. In contrast, pretrial release services
have no financial or physical responsibility for defendants and use large amounts
of taxpayer funds to offer limited supervision of defendants in the community
while awaiting disposition of their case.

Melanie Ledgerwood – Government Relations & Research
Accredited Surety and Casualty Company, Inc. – Orlando, Florida
Preserving Private Surety Bail
This document is intended to provide a “tool kit” and guide to sureties and bail agents to use when
meeting with elected officials, policy makers and citizens regarding the benefits of the private
surety bail industry vs. taxpayer-funded pretrial release services in any community.

SECTION ONE ............................................................................................    Pages 2~4
       Overview of Pretrial Services Movement

SECTION TWO ..........................................................................................      Pages 5~9
      Studies Supporting the Private Surety Bail Industry

SECTION THREE .......................................................................................       Pages 10~12
       Authority Governing Pretrial Services/Release Programs

SECTION FOUR .........................................................................................      Pages 13~14
      Citizens’ Right-to-Know Legislation

SECTION FIVE ..........................................................................................     Pages 15~17
      How to Use Citizens’ Right-to-Know Legislation Effectively

SECTION SIX .............................................................................................   Pages 18~19
      Key Talking Points

SECTION SEVEN.......................................................................................        Page 20
      Elements Needed to Fight Pretrial Services/Release Programs

SECTION EIGHT ........................................................................................      Page 21

Overview of Pretrial Services Movement

History and Function of Pretrial Services Programs

The creation of the Vera Institute of Justice in 1961 marks the beginning of pretrial services
programs – the Manhattan Bail Project. The Manhattan Bail Project sought to assist judges in
making consistent, informed release decisions which relied less on release through financial
means. The factors considered in the release recommendation included: the defendant’s ties to
the area, employment status, education and prior criminal record. Information was gathered
through interviews with defendants and that information was then verified by calling references
provided by the defendant.

The Vera Institute’s proposed research produced two findings. First, many people accused of
committing crimes remained in pretrial custody only because they could not afford a nominal bail.
Second, people with strong ties to the community who were released on their own recognizance
(without any money bail) were very likely to appear for court proceedings. By 1965, 56
jurisdictions reported operational bail projects. Two statewide projects in Connecticut and New
Jersey were also underway.

In 1968, the Washington, D.C. Bail Agency developed the first Pretrial Services programs. The
agency assumed much greater responsibility in seeing that bail practices were carried out as
mandated. In addition to interviewing, collecting background information, verifying information,
producing reports and making recommendations to the court, the pretrial services programs began
supervising defendants on various release conditions. Today, pretrial release programs have
assumed a larger role in jurisdictions, evolving into comprehensive programs charged with
monitoring the entire system of release. Pretrial programs are charged with gathering and
verifying information about the accused (criminal history, status in criminal justice system, address,
employment and drug or alcohol use) and to assess a defendants’ likelihood for failure to appear at
court proceedings or re-arrest while on release. Pretrial services programs present the judge with
this information, allowing him or her to use it in determining appropriate pretrial release/detention
and conditions. Once the judge reaches his decision, the pretrial programs then function as the
supervisors of the defendants on release and notify the courts upon any violation of release

In 1968, the American Bar Association (ABA) published the first set of standards regarding pretrial
release decisions. In 1973, the National Association of Pretrial Services Agencies (NAPSA) was
incorporated. In 1978, with grants from the Department of Justice, NAPSA developed national
professional standards for the pretrial programs – “Performance Standards and Goals for Pretrial
Release” – and PSRC conducted an evaluation of the status of the pretrial field.

The core services provided by pretrial services programs include:

   Interview defendants to gather and verify information on criminal histories, social/economic ties,
   family/friends etc. for initial appearances
   Conduct risk assessments
   Provide supervision of defendants released by the court

History of the Pretrial Justice Institute

In 1976, the U.S. Department of Justice funded the establishment of the Pretrial Services Resource
Center, now called the Pretrial Justice Institute, in response to a request from The National
Association of Pretrial Service Agencies (NAPSA) Board of Directors. In a 1975 survey by the
National Center for State Courts, 91 percent of pretrial program directors expressed a need for
further training and technical assistance for themselves and their staffs, thus the NAPSA directors
submitted a proposal to the Law Enforcement Assistance Administration for the funding of an entity
that could provide such assistance. The proposal was funded and the Pretrial Services Resource
Center (PSRC) was incorporated on December 2, 1976, opening their doors on March 1, 1977 to
serve as a clearinghouse of pretrial services information.

As stated in the Articles of Incorporation, the PSRC was founded, “…to promote research and
development, exchange of ideas and issues, and professional competence in the field of pretrial
services, to encourage the establishment of responsible agencies to provide such services, to
provide technical assistance to those agencies providing such services, to provide a regular means
of communication among such agencies and to develop and implement training materials and
techniques for those engaged in delivering such services.”

In 2007, the PSRC changed their name to the Pretrial Justice Institute (PJI) to more accurately
reflect their mission of advocating nationwide for fair and effective pretrial practices that eliminate
inappropriate detention, optimize diversion from prosecution, and maintain community safety. PJI
seeks to accomplish this mission by facilitating research that drives evidence-based practices,
assisting state and local governments in improving their pretrial policies, and providing technical
assistance to elevate local pretrial practice.

Survey Initiatives and Results

The PJI has conducted four surveys of pretrial services programs nationwide beginning in 1979
and followed by 1989, 2001 with the latest survey conducted in 2009. The survey findings describe
how pretrial services programs:

   Compare in relation to one another
   Adhere to the standards of the American Bar Association and the National Association of
   Pretrial Services Agencies

Key findings from the 2009 survey include the following:

   15 percent of pretrial services programs have been established in the past decade
   44 percent of pretrial services programs established since 2000 serve rural areas
   48 percent of pretrial services programs have never verified their risk assessment tool
   Only 68 percent of pretrial services programs calculate the failure to appear rate
   Only 37 percent of pretrial services programs calculate the re-arrest rate
   60 percent of pretrial services programs serve jurisdictions where the jail is at or over capacity
   38 percent of pretrial services programs started since 1990 are housed in probation

The PJI noted that it is important for pretrial services programs to track defendants who have been
re-arrested on new charges while the initial charge is still pending to meet their goal of minimizing
instances of re-arrest. However, only 37 percent of programs calculate this critical component.

Another important goal of pretrial services program is to minimize instances of failures to appear in
court; however 32 percent of programs do not calculate failures to appear. In addition, programs
differ in how they calculate a failure to appear: 56 percent of pretrial services programs use an
“appearance-based” measure, in which the total number of missed court appearances is divided by
the total number of scheduled court appearances; 42 percent of pretrial services programs use a
“defendant-based” measure, in which the number of defendants who miss at lease one court
appearance is divided by the number of defendants with scheduled court appearances.


Studies Supporting Private Surety Bail

There are many national studies supporting the efficiency and effectiveness of private surety bail
vs. pretrial services programs. Below are key bullets relating to each study as well as a link to the
full study for more detailed information.

Commercial Surety Bail and the Problem of Missed Court Appearances and Pretrial
Detention: June 2008 – Thomas S. Cohen, Ph.D.: Bureau of Justice Statistics – U.S.
Department of Justice
    In the most populous counties of the United States, approximately 60 percent of defendants
    arrested on a felony charge are released prior to the disposition of their case
    Pretrial release in U.S. courts is influenced by the presence of commercial bond agents who
    provide a service of releasing defendants in exchange for a fee and assurances that
    defendants will make all court appearances
    An arrested defendant can also be released through non-financial means including a release
    on own recognizance or release through a pretrial monitoring program
    Recent studies have shown that commercial bond agents have become the most prevalent
    form of pretrial release offered to felony defendants in courts located in highly populous
    The growth of the commercial bond industry raises questions about the effectiveness of this
    type of pretrial release in preventing missed court appearances; how do commercial bond
    agents compare with other forms of pretrial release in ensuring that released defendants make
    all court appearances and do not become fugitives
    Prior research shows commercial bond agents doing better at preventing missed court
    appearances compared to non-surety release alternatives; most of this research, however,
    does not address why surety agents excel at preventing missed court appearances
    Defendants released through surety bond might skip court less frequently because they are
    being monitored more effectively compared to other forms of pretrial release or because surety
    agents have the capacity to select defendants who are most likely to make their court
    This paper engages in a preliminary exploration of whether monitoring practices or selection
    effects accounts for the efficacy of surety bond by examining defendants released in counties
    where surety agents are involved in nearly all facets of the pretrial release decision against a
    set of counties where surety agents play little to no role in pretrial release
    Results provide mixed evidence suggesting that both monitoring capacity and selection effects
    account for the performance of surety agents at getting their clients back to court

Pretrial Release of Felony Defendants in State Courts: November 2007 – Thomas S. Cohen,
Ph.D. and Brian A. Reaves, Ph.D.,: Bureau of Justice Statistics – U.S. Department of Justice
     Between 1990-2004, 62 percent of felony defendants in state courts in the 75 largest counties
     were released prior to case disposition
     Beginning 1998, financial pretrial release was more prevalent than non-financial release mostly
     due to a decrease in the use of release on own recognizance and an increase in the use of
     commercial surety bonds
     Compared to release on recognizance, defendants released on financial release were more
     than likely to make all court appearances
     Defendants released on unsecured bond or emergency release were most likely to have a
     bench warrant issued because of failure to appear

Violent Felons in Large Urban Counties (1990-2002): July 2006 – Brian A. Reaves, Ph.D.,:
Bureau of Justice Statistics – U.S. Department of Justice
    Convicted violent felons are among the most serious offenders in the criminal justice system;
    they are convicted of violent offenses such as murder, rape, robbery, and assault, and given the
    most severe sanctions
    A BJS analysis of felony convictions in the 75 most populous counties found that a majority of
    those committing violent felonies had multiple prior arrests, at least one prior felony arrest and
    one prior conviction
    An estimated 38 percent of violent felons were released from custody pending disposition of the
    case that resulted in their conviction; 50 percent were held on bail and 11 percent were denied
    Among violent felons who had a bail amount set, about two-thirds were released when their
    bail was set at under $5,000, compared to just four percent when it was set at $100,000 or

Public vs. Private Law Enforcement: Evidence from Bail Jumping: 2002 – Eric Helland:
Department of Economics, Claremont-McKenna College and Alexander Tabarrok: Director
of Research, The Independent Institute and George Mason University
    This study compares the effectiveness of release on recognizance, cash or government bail
    vs. surety bail by examining failure to appear rates, fugitive rates and capture rates of felony
    defendants who fall under the respective systems
    Defendants who fail to appear cause significant costs to the criminal justice system
    If the failure to appear is not quickly explained, warrants are issued and two quite different
    systems of pursuit and re-arrest are put into action; public police have the primary
    responsibility for pursuing and re-arresting defendants who were released on their own
    recognizance or on cash or government bail; when a defendant who has borrowed money from
    a bondsman skips trial, the bond dealer forfeits the bond unless the fugitive is soon returned

    As a result, bondsmen have an incentive to monitor their charges and ensure that they do not
    skip; when a defendant does skip, bondsmen are responsible for pursuing and returning
    defendants to custody
    − The data consistently indicate that defendants released via surety bond have lower failure to
       appear rates than defendants released under other methods
    − Bondsmen have numerous ways of creating appropriate incentives for borrowers; a
       defendant who skips town will owe the bondsmen the entire amount of the bond and often
       family members of the bond are cosigners increasing the incentive to appear
    − Bondsmen can devote the time necessary to make sure pursuits are successful as police
       are overburdened and give failure to appear a low priority
    − The fugitive rate for a failure to appear is higher for cash bond vs. release on recognizance
    − The fugitive rate is lower for those released on a surety bond than for other releases
    − The probability of being a fugitive is 64 percent lower on a surety bond compared to a cash

Warnken Report on Pretrial Release: Maryland Bail Bond Association: 2002 – Professor
Byron L. Warnken: University of Baltimore, School of Law (no on-line version available)
    Study was commissioned as a response to the Colbert and Deeley reports
    Primary finding: of all forms of pretrial release, corporate surety bail is the most effective
    Despite bonding defendants that have been judicially determined to be “least reliable,”
    Corporate Surety Bail has outperformed all other forms of pretrial release. District Court
    statistics for 1998 and 1999 reveal that the FTA rate for defendants released on their own
    recognizance (ROR) was 14.7 percent, which was 40 percent higher than for defendants
    released through a bail bondsman on Corporate Surety Bail (10.5 percent)
    District Court statistics for 1998 and 1999 reveal that the FTA rate for defendants released on 10
    percent Deposit Bail (14.1 percent) was 34.3 percent higher than defendants released,
    through a bail bondsman, on Corporate Surety Bail (10.5 percent). Additionally, the FTA rate
    for defendants released on Unsecured Bail (13.2 percent) was 25.7 percent higher than for
    defendants released through a bail bondsman on Corporate Surety Bail (10.5 percent)
    A national study conducted by the Department of Justice in 1992 of the 75 largest counties found
    that Corporate Surety Bail had the highest appearance rate - thus, lowest FTA rate — of any form
    of pretrial release for felony defendants. In fact, the Department of Justice Study disclosed that a
    defendant on a 10 percent Deposit Bail was 60 percent more likely to FTA than a defendant
    released on Corporate Surety Bail, and that a defendant released on Unsecured Bail was 180
    percent more likely to FTA than a defendant released on Corporate Surety Bail
    Department of Justice Study substantiates that, for those defendants that do FTA, Corporate
    Surety Bail is far superior in locating and returning its bonded FTA defendants to the Court's
    jurisdiction. The Study found that only 3 percent of Corporate Surety Bail defendants ultimately
    remained fugitives after one year, a return rate that is 100 percent better than the rate for 10
    percent Deposit Bond FTA defendants (6 percent), and 533.3 percent better than the rate for
    Unsecured Bail FTA defendants (19 percent)
    By integrating family and friends into the "circle of responsibility," as guarantors on the bond, the
    Corporate Surety Bail process sufficiently "invests" - and, thus, instills financial incentive in -

    those guarantors, as well as the defendant and bondsman, to assure that the defendant
    appears, as required and, if he does FTA, there is active and concerted pursuit of the defendant
    until he is located and returned to the Court's jurisdiction
    The economic cost of FTA's - estimated by a Chicago Study to be $3,474 per re-arrest and by a
    California crime victims study to be between $ 1,109 and $ 1,270 in "budgetary costs" and between
    $8,319 and $11,105 in "total costs, including social costs" — is real and substantial. As
    indicated by the District Court statistics, if the other forms of pretrial release within the criminal
    justice system could reduce their FTA rate to that of Corporate Surety Bail, there would have
    been 8,068 fewer District Court criminal defendants FTA in 1998 and 1999. Applying the Chicago
    Study cost of re-arrest ($3,474) to the 8,068 extra FTA's, the extra cost exceeded $28 million,
    which could have been the savings realized through cost effective Corporate Surety Bail
    In November 2001, the Baltimore Sunpapers reported that Baltimore City alone had 98,000
    open warrants. Expanded use of Unsecured Bail, 10 percent Deposit Bail, or expansive state
    agency supervision programs - inevitably resulting in increased FTA's, with greater cost and
    less accountability - will further burden police departments and impact public safety as those
    FTA's remain at large, exacting the economic and social costs to our citizenry, particularly to
    the new victims of crimes committed by FTA's
    For Corporate Surety Bail, the District Court bail forfeiture procedures impose accountability. If
    any bail forfeiture is not resolved or paid in accord with those procedures, the surety company
    that underwrote the bail is disqualified from doing business statewide until rectified
    The data, including the fact that statewide 50 percent of the arrested defendants (and 60
    percent in Baltimore City) are ROR indicates that the Court Commissioners (Commissioners)
    and District Court Judges are making reasoned and able pretrial release decisions

Effectiveness and Cost of Secured and Unsecured Pretrial Release in California’s Large
Urban Counties (1990-2000): March 2005 – Michael K. Block, Ph.D.: Professor of Economics
and Law, University of Arizona
    The study compares and contrasts the performance of secured release and unsecured release
    programs: Surety Bond, Release on Own Recognizance and Conditional/Supervised Release
    The most common form of financially secured release is referred to as a surety bond
    In California, the most common forms of unsecured release are called release on own
    recognizance (ROR) and conditional or supervised release (CR)
    A defendant released on own recognizance or conditional/supervised release was about 60
    percent more likely to have failed to appear for a scheduled court appearance as a defendant
    released on surety bond – 32 percent vs. 20 percent
    A defendant who failed to appear for a scheduled court appearance was approximately two-
    and-a-half-times more likely to remain a fugitive if he/she was released on own recognizance
    or conditional/supervised release than if he/she was released on surety bond
    If proportions released on surety bond and own recognizance or conditional/supervised release
    was reversed, it is estimated that there would have been over 1,000 fewer failures to appear
    If surety bond had completely replaced own recognizance or conditional/supervised release as
    a release option, it is estimated that there may have been over 6,000 fewer failures to appear
    A more aggressive use of surety bond could save taxpayers between $1.3 million and $10

   million per year in budget outlays, depending on exactly how aggressive these counties are in
   replacing release on own recognizance or conditional/supervised release with release on
   surety bond
   Total cost savings, including the social costs of failures to appear, could range from $14 million
   to over $109 million per year in these counties, again depending on how aggressive they are in
   replacing own recognizance or conditional/supervised release with release on surety bond

The Impact of Failure to Appear Upon Florida’s Criminal Justice System: February 1990 –
Roger Handberg, Ph.D.: University of Central Florida (no on-line version available)

   The results reported in this report are drawn from three counties: Alachua in the Eighth Circuit, Broward in
   the Seventeenth, and Orange in the Ninth Circuit
   Failure to appear is a hidden cost of doing business within the criminal justice process; when defendants fail
   to make mandatory Court appearances, the entire process is disrupted at great cost and inconvenience to the
   Court system and the people of Florida
   For the defendant, no cost appears to be attached for failure to meet his or her obligation to the Court system
   The transitory nature of Florida's population means that for routine lesser felony cases, witnesses, including
   police officers, are rapidly lost as reliable witnesses if the case is excessively delayed; the result is that the
   defendant may well have the case dismissed or be allowed to plead to a much lesser offense if
   apprehended later
   Due to jail overcrowding and relatively easy release on recognizance programs, misdemeanor offenders are
   unlikely to be aware that surety bail bond exists or is applicable to their cases
   Balancing out the considerations of insuring the defendant's subsequent appearance and protecting the
   community has been a dilemma; historically, protection against unreasonable bail has been guaranteed under
   the U.S. Constitution and state constitutions
   Bail as a release mechanism has evolved through several historical stages from a highly personalized
   individualized release process to one where the commercial insurance industry provides much of the surety
   bond money available for detainees
   The sole purpose of bail use to be to ensure the delivery of the accused at the various stages in the process;
   this is no longer true as now the protection of the community is a valid purpose as well
   There is an ideological chasm between the government components of the pretrial release system and the
   private sector represented by the bail bondsmen; the bondsmen generally are more positively perceived by
   the trial Court judges than any other component of the system due to the Judges' perception of the
   bondsmen's ability to ensure the appearance of the defendant
   The ideological chasm between the public sector and the private sector must be addressed if Florida is to
   develop the most effective pretrial release process possible; at present, the system is a hybrid with little
   explicit coordination between the two sectors
   Reducing the failure to appear rate in Florida Courts is a matter of political will; the continuing fiscal crisis in
   Florida's public sector makes reduction of the failure to appear rate a priority because even partial success in
   that effort will be the equivalent of a budget increase of 10-20 percent


Authority Governing Pretrial Services/Release

None of the cited legal authority for pretrial release permits or authorizes a delegation of judicial
authority to employees of the executive branch (Jail) or other non-judicial officers, to affect the
release of a detainee prior to Initial Appearance and without a judicial determination by a Judge.
Release by Jail staff without judicial involvement presents an irreconcilable conflict between the
Constitutional provisions, Statutes and Criminal Rules of Procedure relating to pretrial release of
defendants. Administrative orders attempting a delegation of judicial authority to non-judicial
personnel does so impermissibly and unlawfully.

Florida – A Case in Point

A careful look at Article I, Section 14 of the Florida Constitution, discloses that persons charged
with offenses not punishable by life or death, “shall be entitled to pretrial release on reasonable
conditions,” and further provides for pretrial detention where appropriate. The Florida Constitution
uses the term, “pretrial release,” rather than, “bail,” but it does not provide any procedure or
authorization or other implementing language. The Legislature and Supreme Court inherited the
task of implementing this Constitutional provision.

Florida Legislature declared with the passage of F.S. §903.011 in 1984 that:
903.011 "Bail" and "bond" defined; general terms.
(1) As used in this chapter, the terms "bail" and "bond" include any and all forms of pretrial
(2) Any monetary or cash component of any form of pretrial release may be met by a surety bond.
(3) Differing monetary amounts may not be set for cash, surety, or other forms of pretrial release.
History.--s. 39, ch. 84-103; s. 2, ch. 2008-224.

The Florida Legislature entered the arena with Chapter 907 of the Florida Statutes.

907.041: Pretrial Detention and Release

Legislative Intent – It is the policy of this state that persons committing serious criminal offenses,
posing a threat to the safety of the community or the integrity of the judicial process, or failing to
appear at trial be detained upon arrest. However, persons found to meet specified criteria shall be
released under certain conditions until proceedings are concluded and adjudication has been
determined. The Legislature finds that this policy of pretrial detention and release will assure the
detention of those persons posing a threat to society while reducing the costs for incarceration by
releasing, until trial, those persons not considered a danger to the community who meet certain
criteria. It is the intent of the Legislature that the primary consideration be the protection of the
community from risk of physical harm to persons.

Although the Pretrial Release statute begins with F.S. 907.041, it is also important to also review
F.S. 907.043, which states:

“Pretrial release program” means an entity, public or private, that conducts investigations of pretrial
detainees, makes pretrial release recommendations to a court, and electronically monitors and
supervises pretrial defendants. However, the term “pretrial release program” shall not apply to the
Department of Corrections.”

Rules of Procedure – Procedures for pretrial release determinations shall be governed by rules
adopted by the Supreme Court.

Rule 3.131: Pretrial Release

(a) Right to Pretrial Release

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof
of guilt is evident or the presumption is great, every person charged with a crime or violation of
municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no
conditions of release can reasonably protect the community from risk of physical harm to persons,
assure the presence of the accused at trial, or assure the integrity of the judicial process, the
accused may be detained.
(b) Hearing at First Appearance – Conditions of Release

(1) Unless the state has filed a motion for pretrial detention pursuant to rule 3.132, the court shall
    conduct a hearing to determine pretrial release. The rule does not say that unless the state has
    filed a motion for pretrial detention or the pretrial release program has already summarily
    decided to let the arrestee go. For the purpose of this rule, bail is defined as any of the forms of
    release stated below. Except as otherwise provided by this rule, there is a presumption in favor
    of release on non-monetary conditions for any person who is granted pretrial release. The
    judicial officer shall impose the first of the following conditions of release that will reasonably
    protect the community from risk of physical harm to persons, assure the presence of the
    accused at trial, or assure the integrity of the judicial process; or, if no single condition gives
    that assurance, shall impose any combination of the following conditions:

(A) Personal recognizance of the defendant;
(B) Execution of an unsecured appearance bond in an amount specified by the judge;
(C) Placement of restrictions on the travel, association, or place of abode of the defendant during
    the period of release;
(D) Placement of the defendant in the custody of a designated person or organization agreeing to
    supervise the defendant;
(E) Execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof;
    provided, however, that any criminal defendant who is required to meet monetary bail or bail
    with any monetary component may satisfy the bail by providing an appearance bond; or
(F) Any other condition deemed reasonably necessary to assure appearance as required, including
   a condition requiring that the person return to custody after specified hours.

(2) The judge shall at the defendant's first appearance consider all available relevant factors to
    determine what form of release is necessary to assure the defendant's appearance. If a
    monetary bail is required, the judge shall determine the amount; if monetary bail is to be the
    “form of release” that “the judge determines” to be necessary, then it is “the judge” that is to
    “determine the amount.” Nowhere does the Rule permit the judge to delegate this duty of
    determination to a non judicial officer.
(3) In determining whether to release a defendant on bail or other conditions, and what that
    bail or those conditions may be, the court may consider the nature and circumstances of
    the offense charged and the penalty provided by law; the weight of the evidence against the
    defendant; the defendant's family ties, length of residence in the community, employment
    history, financial resources, need for substance abuse evaluation and/or treatment, and mental
    condition; the defendant's past and present conduct, including any record of convictions,
    previous flight to avoid prosecution, or failure to appear at court proceedings; the nature and
    probability of danger that the defendant's release poses to the community; the source of funds
    used to post bail; whether the defendant is already on release pending resolution of another
    criminal proceeding or is on probation, parole, or other release pending completion of sentence;
    and any other facts the court considers relevant.

(4) No person charged with a dangerous crime, as defined in section 907. 041(4)(a), Florida
    Statutes, shall be released on non-monetary conditions under the supervision of a pretrial
    release service, unless the service certifies to the court that it has investigated or
    otherwise verified the conditions set forth in section 907.041(3)(b), Florida Statutes. Even the
    court may not release certain defendants on non-monetary conditions unless the service
    certifies to the court that it has investigated…” The pretrial release service is required to do
    an investigation and is required to certify to the court that it has complied with the statute.

(5) All information provided by a defendant in connection with any application for or attempt to
    secure bail, to any court, court personnel, or individual soliciting or recording such information
    for the purpose of evaluating eligibility for or securing bail for the defendant, under
    circumstances such that the defendant knew or should have known that the information was to
    be used in connection with an application for bail, shall be accurate, truthful, and complete,
    without omissions, to the best knowledge of the defendant. Failure to comply with the
    provisions of this subdivision may result in the revocation or modification of bail. However, no
    defendant shall be compelled to provide information regarding his or her criminal record.
The role of pretrial services and a pretrial release program is to (1) investigate; (2) make
recommendations to the Court; and (3) monitor and supervise pretrial defendants (when ordered
by the Court). Nowhere in Florida Statutes does it state that the role of the “pretrial release
program” is to release anyone, any time, anywhere, based on any set of criteria. That is the role of
the Court, after accepting and taking into consideration the facts investigated based on specific
criteria and presented by the pretrial release program.

Citizens’ Right-to-Know Legislation

Three states have some form of legislation or are working to implement legislation: Florida, Texas
and Tennessee

   Florida: Citizens’ Right-to-Know Act approved July 1, 2008
   Texas: Citizens’ Right-to-Know Act approved 1997/1998
   Tennessee: Citizens’ Right-to-Know House bill 1363 pending approval
   North Carolina: Citizens’ Right-to-Know bill 1013 carried over to 2010 session

The nexus of such legislation is to require pretrial services/release programs that use taxpayer
funds to prepare a weekly register displaying information relevant to the defendants released
through such program. The register must be located at the office of the clerk of the circuit court in
the county where the program is operated and be readily accessible to the public.

A Case Study: Review of Florida’s Citizens’ Right-to-Know Act

The Office of Program Policy Analysis and Government Accountability (OPPAGA) in Tallahassee,
Florida are charged with evaluating the effectiveness and cost-efficiency of pretrial services/release
programs in Florida. OPPAGA submits an annual report of their study to the President of the
Senate and the Speaker of the House of Representatives by a specified date.

The OPPAGA report issued in December 2008 profiled Florida’s 29 pretrial services/release
programs and assessed their compliance with the new statutory reporting requirements. In the “at
a glance” section of the front page of the report, the first of many misconstrued statements were
made when the report stated that, “data is not available to compare defendants in pretrial release
programs to those released on bond or on their own recognizance.” As the private surety bail
industry is aware of and as outlined in this toolkit, there are several national studies that compare
the effectiveness of release methods and overwhelmingly show that private surety bail is the
most effective and efficient means of pretrial release.

Most of Florida’s 29 programs conducts investigations of defendants have representatives at
defendants’ initial court appearances and make release recommendations to the court. According
to OPPAGA, most programs also provide drug and alcohol testing. Almost all of the programs are
locally funded and administered at the county level; however the size and budget of the programs
vary substantially. Budgets ranged from $4.8 M to $69 K, and the number of defendants served
ranged from just over 11,000 to 113.

Florida’s legislation requires that each weekly register contain 11 date elements:
   The name, location, and funding source of the pretrial release program
   The number of defendants assessed and interviewed for pretrial release
   The number of indigent defendants assessed and interviewed for pre-trial release
   The names and number of defendants accepted into the pretrial release program
   The names and number of indigent defendants accepted into the pre-trial release program
   The charges filed against and the case numbers of defendants accepted into the pretrial
   release program
   The nature of any prior criminal conviction of a defendant accepted into the pretrial release
   The court appearances required of defendants accepted into the pretrial release program
   The date of each defendant's failure to appear for a scheduled court appearance
   The number of warrants, if any, which have been issued for a defendant's arrest for failing to
   appear at a scheduled court appearance
   The number and type of program non-compliance infractions committed by a defendant in the
   pretrial release program and whether the pretrial release program recommended that the court
   revoke the defendant's release

However, Florida’s legislation has no sanctions attached for non-compliance and pretrial release
programs may report on some or all of the required criteria, nor is there a standardized format for
the weekly registry information. Florida’s pretrial services agencies, as well as programs across
the state where such legislation has been discussed, have said the reporting requirements are
burdomesome and would require additional staffing and revenue for compliance.


Example: How to Use Citizens’ Right-to-Know Legislation Effectively

Citizens’ Right-to-Know Analysis Process and Results – Orange County, Florida

Prior to the passage of the Citizens’ Right-to-Know Act in Orange County, Florida, the public was
not provided with information on defendants released through the pretrial release program nor the
types of charges arrested and released on unless through an often costly public records request.
Orange County has both “judicial release” and “administrative release” into the pretrial release
program. An administrative order issued by the Chief Judge governs administrative release and
allows a non-judicial officer to make a release decision without any judicial involvement.

The analysis process consisted of obtaining the weekly register from the Clerk of Court and then
researching the Clerk’s database to obtain the defendant’s original charge. Prior criminal and
driving-offense histories were researched to include failures to appear and violations of probation.
The release through the pretrial release program was then compared for eligibility against the
administrative order and a comprehensive report was compiled on all releases.

The Orange County Jail fully reports on three of the required criteria and somewhat on two of the
required criteria; the remaining six data criteria are not addressed. However, the registry contains
enough information for research and analysis.

After a careful analysis of the registry information, it was learned that defendants charged with
serious offenses were being released “administratively” and many of the defendants had lengthy
criminal and/or driving offense histories and were able to post a surety bond for past arrests. As
information is currently listed on the pretrial release registry, the general public has no idea of the
types of charges defendants are being released on.

While the majority of these releases are in accordance with the current administrative order, in
random reviews several cases were found where defendants were released against the
administrative order. In addition, defendants with identification holds were also pre-approved for
pretrial release.

The analysis of the Orange County Jail’s pretrial release registry information shows that
defendants were released “administratively” for both felony and misdemeanor offenses as
indicated below:
     Possession (including armed possession and possession with intent to sell/deliver) of heroin,
     cocaine, marijuana, drug paraphernalia, oxycodone, hydrocodone, carisprodal, Xanax,
     methadone, new legend drug
     Introduce contraband into county facility; obtain/attempt to obtain drug by fraud
     Possessing/carrying a concealed firearm/weapon; possession of firearm in the commission of
     a felony
     Possession of short-barreled gun, rifle, machine gun
     Improper exhibition of a firearm/weapon
     Grand theft 3rd degree; grand theft 3rd degree on a person 65 years of age or older

    Aggravated assault/aggravated battery with a weapon
    Prostitution/assignation to solicit prostitution
    Exposing sexual organs; indecent exposure
    Lewd/lascivious behavior
    Theft; larceny; shoplifting
    Burglary; burglary of a structure/conveyance; possession of burglary tools
    Battery; battery on law enforcement/firefighter/security officer/code enforcement officer
    Resisting law enforcement officer without violence and with violence
    Assault on a law enforcement officer
    Driving under the influence; with minor in vehicle .20 >; .80 >; with property damage and/or
    personal injury
    Forgery; forgery of bank bills/promissory notes scheme to defraud
    Criminal use of personal identification; identify theft
    Criminal attempt/solicit and conspire
    Dealing in stolen property via internet
    Neglect of a child
    Exploitation of the disabled or elderly
    Tampering with evidence
    Disorderly intoxication/open container
    Contributing to the delinquency of a minor
    Trespass/criminal mischief
    Throw deadly missile at/into occupied vehicle
    Numerous driving-related offenses, including habitual offenses (no valid driver’s license,
    driving with license suspended/revoked, no insurance/registration, careless/reckless driving

Armed with the analysis information covering several months, Accredited Surety and Casualty
Company and members of the Tri-County Bonding Association, began an education campaign with
community leaders and policy makers. The goal was to educate stakeholders on the differences
between the private surety bail industry and a taxpayer-funded pretrial release system, as well as a
well-researched and comprehensive document showing the types of defendants being released
without any judicial involvement.

Meetings were held with:
  Chief Judge
  Initial Appearance Judges
  County Commissioners
  Orange County Sheriff
  Orange County Public Safety Director
  State Attorney
  Public Defender
  Correctional staff
  Criminal Justice/Public Safety Coordinating Council
  Media outlets
  Bail Bond Association members

Education within our community is an ongoing process and takes different forms depending on the
audience. As an example of citizen education, Accredited paid for a mailer to be sent to 50,000
Orange County residents educating them on how their limited tax dollars were being used to
release and supervise defendants charged with serious offenses. The response to the mailer was

The Tri-County Bonding Association has also increased their advocacy efforts by attending County
Commission meetings whenever the Jail makes a presentation and has spoken at public hearings
regarding the use of taxpayer funds to compete against private enterprise with a much lower
success rate. Rebuttals have been written to policy makers presenting the, “other side of the
issue,” in response to reports issued by the Jail regarding the pretrial release program. In addition,
two prominent defense law firms are working with the Association to challenge the legality of
“administrative pretrial release” through an appellate action and if successful, will disband this type
of release mechanism forcing the Judges to make the release decision and not non-judicial staff.
In addition, visibility and awareness of the issue has dramatically increased by actively pursuing a
variety of public relations initiatives in print and media outlets. Social network sites have been
established to further educate the citizens regarding pretrial release programs:


Insurance companies, bail agents, and bail associations in Florida that have pretrial release
programs operating out of a county jail are encouraged to educate themselves on the Citizens’
Right-to-Know legislation and advocate that the jails begin compiling registry information to be in
compliance with the law. It is important that weekly registers be obtained in order to do a thorough
analysis on the information. While the Clerk of Court by law can charge a $1 per page for registry
information, a relatively inexpensive scanner can be purchased and synced with a laptop for easy
scanning without the need to purchase registry information.


Key Talking Points

Below are some key talking points to be used when advocating for less use of taxpayer-funded
pretrial services/release programs:

Private Surety Bail

    The private surety bail industry saves taxpayers millions of dollars each year by producing
    defendants for court to receive their sentences
    The most effective and efficient method of pretrial release, which guarantees the defendant’s
    appearance in Court
    Private surety bail outperforms all other types of pretrial release
    Private surety bail has the lowest failure to appear rate – defendants who fail to appear are
    more likely to commit additional crimes
    Felony defendants released on a private surety bail are less likely to have failure to appear in
    Court and become fugitives
    For defendants that do fail to appear, private surety bail is more successful in locating and
    returning the defendant to Court
    Bail agents can devote the time necessary to make sure fugitives are apprehended
    Public safety is better served by the private surety bail system than taxpayer-funded pretrial
    release systems and can help to relieve jail overcrowding
    Conditional private sector release of a defendant is in the public’s best interest
    Public safety and the wise use of taxpayer dollars should be a shared goal
    The private sector is accountable financially and physically for defendants
    Private surety bail invests and instills financial incentives by integrating family and friends as
    guarantors of a bond
    Private surety bail can be posted in a timely fashion
    Bail agents are committed to their respective endeavors and perform their jobs with the utmost
    competence and professionalism

Pretrial Services/Release Programs
     Taxpayer-funded pretrial services/release programs should not compete with private
    Taxpayer-funded pretrial services/release programs should adhere to their original intent of
    assisting indigent defendants charged with first-time, non-violent offenses to secure release
    from jail, thus making the most efficient use of taxpayer funds
    Re-arrest rates are highest for those defendants released on their own recognizance
    Taxpayer-funded pretrial services/release programs have no financial responsibility for
    defendants who fail to appear or become fugitives, nor do they attempt to locate such

       Failure to appear is higher for defendants released on their own recognizance, unsecured bail
       or the 10 percent deposit bail
       The economic cost of failure to appear is substantial
       Research has shown that many individuals released via a pretrial services/release program are
       able to post a bond within 48-to-72 hours (many have posted bonds for previous arrests)
       Limited face-to-face contact of a pretrial release program diminishes the accountability for a
       defendant’s actions

  In addition, the following chart succinctly outlines the differences between the two systems:

                  Private Surety Bail                           Taxpayer-Funded Pretrial Release Programs

Long and historic partnership in the criminal justice        Original intent was for the release of indigent, non-
system                                                       violent, first-time offenders
Privately funded; no cost to taxpayers                       Completely taxpayer-funded
Personally tracks and monitors defendants to ensure          Supervision is often limited to telephone reporting
they appear for all court appearances                        managed by a contracted vendor or limited face-to-face
Guarantees a defendant’s court appearance                    No guarantee of court appearance
Lower re-arrest rates                                        Higher re-arrest rates
Bail agents have arrest powers                               No arrest powers
Bail agents are financially accountable for defendants;      No financial accountability for defendants who fail to
bail agent pays the full forfeiture of a bond if defendant   appear; pays no forfeiture if defendant fails to appear
fails to appear
Invests and instills financial incentives by integrating     Little or no interaction with a defendant’s family/friends
family/friends as guarantors of a bond
Has the lowest failure to appear rate of all forms of        Failure to appear is highest for defendants released on
release; defendants who fail to appear are more likely       their own recognizance, unsecured bail or 10% deposit
to commit additional crimes                                  bail; re-arrest rates are highest for defendants released
                                                             on their own recognizance
Felony defendants released on a surety bond are less         Pretrial release programs do not attempt to locate or
likely to have a failure to appear and become fugitives      apprehend defendants who fail to appear
For defendants who do fail to appear, private surety         No effort made to recover defendants who fail to
bail is more successful in locating and returning            appear; the economic costs to taxpayers for failures to
defendants to jail                                           appear is substantial
Pays all costs of extradition for defendants who fail to     More tax dollars spent by having law enforcement find
appear and are re-arrested                                   and extradite defendants who have failed to appear
Helps significantly to reduce jail overcrowding              If releasing same defendants otherwise eligible for
                                                             release via a surety bond, there is no positive effect on
                                                             jail overcrowding


Key Elements Needed to Fight Pretrial Services/Release Programs

Below are suggested elements needed in order to consistently and effectively advocate for the
private surety bail industry and the critical service bail agents provide in our communities every
    Have accurate facts and statistics to bolster your message of accountability and to show the
    true nature of releases through pretrial services/release programs
    Use data to show the success of the private surety bail industry vs. a taxpayer-funded system
    Present information in a professional and understandable format
    Tailor your message and information to your audience
    Present yourself professionally at all times with all audiences
    Have a consistent message and use a consistent and knowledgeable spokesperson
    Respond to media requests for information in a timely manner
    Keep detailed documentation and e-mail chains for follow-up purposes
    Remain diligent in obtaining jail release information
    Be visible with elected officials making policy and budget decisions and other community
    Work closely with your bail bond association to further your advocacy efforts and messaging
    Be willing to be interviewed by the media
    Use social networking sites to education citizens on the use of their tax dollars



The private surety bail industry has a long and historic partnership in the criminal justice system.
The purpose of bail is to ensure the appearance of the defendant in court and to enhance public
safety. Private surety bail has done this for generations in the United States with an astounding
record of reliability and accountability at no cost to the taxpayer. Bail agents track and monitor
defendants to ensure they appear in Court and receive their sentences. Bail agents and the
insurance company backing the bonds are monetarily responsible for defendants released on
private surety bail. If a defendant flees, the agent must return the defendant to jail or pay the court
– often large sums of money. Bail agents not only have a financial interest in making sure a
defendant appears in court, but they also have a fiduciary commitment to the courts, taxpayers and
victims of crime. Pretrial services/release programs are not financially or physically responsible for
their clients, nor do they attempt to apprehend a defendant if they fail to appear in Court. The
limited face-to-face contact of a pretrial services/release program diminishes the accountability of a
defendant’s actions.

There is a role for both the private surety bail industry and pretrial services/release programs to
play in the criminal justice arena. Pretrial services/release programs should focus on doing a
thorough investigation into a defendant’s criminal and social history in order to provide for a
meaningful Initial Appearance, whereby a judicial officer can make the most informed release
decision for that defendant. Pretrial release is an alternative to incarceration that allows arrested
defendants to be released from jail while they await disposition of their case; however, such
release should be solely a judicial decision. Unless a judicial officer orders supervision into a
pretrial services/release program, such programs should limit their supervision activities to indigent,
non-violent and first-time offenders into the criminal justice system.

Elected officials, policy makers and the community need to have an accurate and clear
understanding of how the private surety bail industry positively affects our criminal justice system.
Public safety and the wise use of taxpayer dollars should be a shared goal. In the face of such an
unprecedented economic crisis and a growing crime rate, we should be spending our tax dollars in
the most efficient and effective way.

The private surety bail industry will continue to advocate for less use of taxpayer-funded pretrial
services/release programs that historically have higher failure to appear rates and fugitive rates.

Public policy affects public safety.


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