Debtors Prison?

A hot topic in the criminal justice community revolves around the monetary burden placed on the pretrial housing of accused defendants. The debate on how to handle pretrial defendants occurs at the federal, state, and local levels. The state of South Carolina primarily mandates pretrial release of defendants through the use of personal recognizance bonds (no monetary fee nor is there a guarantor for the successful appearance of the defendant), and commercial bail (charges a premium to guarantee the defendants successful appearance in court). In the case of the majority of defendants in South Carolina they will be released pending trial by one of the aforementioned methods. The problem many scholars fail to acknowledge in the state of South Carolina is the ability of the defendant to remain free post-conviction.

 

The state of South Carolina is based on a “pay the fine or do the time” mantra throughout the summary court system. Thus meaning that a defendant in the majority of misdemeanor cases is faced with two options for criminal penalty if found guilty of the accused crime. In a state with no misdemeanor probation these low-income defendants are now faced with the daunting task of paying a fine amount, or serving a 30-day jail sentence. If a defendant is fortunate enough to reach a payment agreement with the court of competent jurisdiction they may retain their freedom so long as they make all payments as agreed to. Should a defendant fail to comply with the agreement a bench warrant will be issued and the defendant will be jailed until one of the following requirements is met:

 

  1. the defendant pays off the remainder of the balance owed in full
  2. the defendant serves the mandated jail sentence by incarceration

 

Essentially this system sets up for a debtors prison, or the housing of post-conviction defendants simply because they lack the ability to pay a fine. In a system dominated in thought about the monetary burden of pre-trial housing significant thought should be placed on the post-conviction housing for non-violent misdemeanor/family court offenders whom are being detained for the inability to pay a fine amount. In this line of business it is often seen that the majority of defendants have the ability to be released pre-trial, yet lack the ability to retain their freedom when faced with post-conviction fines.

 

The state of South Carolina, and more importantly the city of Charleston have begun to look at government funded pre-trial release services based on risk assessment methods. However, the state already has these methods in place through the use of magistrate judges, and the use of personal recognizance bonds (SC code of laws 17-15-10; 17-15-30). Rather than re-inventing the wheel surety agents should be provided court date notification in order to reduce the issuance of frivolous bench warrants pre-trial. This will tremendously reduce the issuance of pre-trial bench warrants while keeping a financially bound surety responsible for the defendant. Secondly the funds used to move towards government funded defendant release may be better served in misdemeanor probation efforts. Government funded programs may be better served by turning focus to the post-conviction housing of defendants simply because they lack the ability to pay a fine. Instituting misdemeanor probation type services can reduce the housing of bench warranted individuals due to monetary restrictions. In doing this these defendants can provide community services to restore the debts to society caused through their crimes, rather than having the taxpayer bear the financial burden of housing the defendant in jail because they lack the ability to pay a fine.

 

“A” Bail Now! Bail Bonds Inc.

Donald F. Mescia III

dmbail@outlook.com

Advertisements

4 Types of Bondsman

A bail bondsman is a designated agent licensed by the department insurance whom pledges consideration to the state in order to ensure the successful completion of a criminal defendants appearance to all court dates required by the court of competent jurisdiction pending the resolution of a criminal accusation. The state of South Carolina designates four types of bail bondsman as outlined in Chapter 38 of the South Carolina Code of Laws. These types of bondsman will be listed as follows:

  1. Accommodation Bondsman – “means a person who has reached the age of eighteen years, is a resident of this State, who, aside from love and affection and release of the person concerned, receives no consideration for action as surety, and who endorses the bail bond after providing satisfactory evidence of ownership, value, and marketability of real property to the extent necessary to reasonably satisfy the official taking bond that the real or personal property will in all respects be sufficient to assure that the full principal sum of the bond will be realized in the event of breach of the conditions of the bond. “Consideration” as used in this item does not include the legal rights of a surety against a defendant by reason of breach of the conditions of a bail bond nor does it include collateral furnished to and securing the surety so long as the value of the surety’s rights in the collateral does not exceed the defendant’s liability to the surety by reason of a breach in the conditions of the bail bond” (1, 38-53-10, SC code of laws).
  2. Professional Bondsman – “means any person who is approved and licensed under the provisions of this chapter and who pledges cash or approved securities with the clerk of court as security for bail bonds written in connection with a judicial proceeding and receives or is promised money or other things of value for the pledge” (9, 38-53-10, SC code of laws).
  3. Surety Bondsman – “means any person who is approved by and licensed by the director or his designee as an insurance agent, appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings, and receives or is promised money or other things of value for the execution or countersignature” (12, 38-53-10, SC code of laws).
  4. Runner – “means a person employed by a bail bondsman for the purpose of assisting the bail bondsman in presenting the defendant in court when required, assisting in the apprehension and surrender of the defendant to the court, keeping the defendant under necessary surveillance, and executing bonds on behalf of the licensed bondsman when the power of attorney has been recorded. “Runner” does not include an attorney or a law enforcement officer assisting a bondsman” (10, 38-53-10, SC code of laws).

The four types of bondsman listed are recognized as qualified agents in the state of South Carolina. A simple explanation of each can be presented. An accommodation bondsman is any person whom pledges bail out of love and affection for those accused. An example of this type of bondsman is a parent who pledges a full cash bail for one of their children. Professional bondsman pledge their own resources (cash, property) to the state in order to conduct business. A surety bondsman, the most common type of bondsman, conducts business in behalf of an insurance company. A runner must be licensed underneath a professional or surety bondsman who will assume all liability for the actions of the runner.

Get Out of Jail Free Card

In the last post I discussed the purpose for surety bail. For the sake of reiteration, the post can be found prior to this on our Facebook page, surety bail is utilized to hold the surety financially accountable to the state to ensure the defendant appears at all court dates required by the court of competent jurisdiction. In this post I will discuss the most utilized form of pretrial release in South Carolina. This form of release is known as a personal recognizance. This term will often be referred to as a PR bond (personal recognizance) or OR bond (own recognizance). As a society that was raised playing the game of monopoly this form of release can easily be equated to the “get out of jail free card”. To move further, a discussion on the meaning of personal recognizance, the purpose for personal recognizance bonds, and the shortcomings of personal recognizance bonds will be discussed.

A personal recognizance bond is an unsecured form of pretrial release mandated by a magistrate judge that allows a defendant to be released from custody on their own promise to appear at future court dates as required by the court of competent jurisdiction. This release is considered unsecure because a surety is not financially bound to the state should the defendant fail to uphold the conditions of bail. Rather should the defendant abscond there are no third party guarantors associated with the case, and the state must maintain all financial responsibility in locating, apprehending, and transporting the absconded defendant. This form of release provides the defendant with absolutely no accountability throughout the judicial process. Due to the nature of a PR bond, having zero financial responsibility, it can be equated to a “get out of jail free card”.

Certainly there is a large purpose for PR bonds in the criminal justice community. These bonds were created as a form of release for low risk, first time, non-violent offenders to be released pretrial. A majority of crimes committed in urban areas result from traffic violations and low level victimless crimes. These individuals were meant to be granted PR bonds in order to alleviate jail population. When used correctly PR bonds can be a vital tool in combatting the issues of jail overcrowding. It is when this form of release is abused that issues occur from a public safety standpoint.

Public safety is one of the largest concerns when considering bail. It would be assumed by the public that all criminal actions with a victim involved would be required to meet bail with secured sufficient surety. However, this is not the case. I can personally attest that personal recognizance bonds are granted to individuals charged with high-level felony crimes on a daily basis. A large number of these crimes include domestic violence, burglary, manufacturing of drugs, weapon possessions, felony dui, etc… This is not only a safety concern for the victim, but also the public as a whole. The public safety issue arises through a lack of accountability. The defendant is released with no supervision or financial responsibility when granted a personal recognizance bond. When required to post secured surety bail a defendant is monitored, must check-in, must appear in court, must be of good behavior, have no contact with the victim, notify with change of address, and not to leave the state of South Carolina. If the defendant violates one of the conditions the surety may apprehend the defendant to prevent any imminent violations of the conditions for bail. On a personal recognizance bond there is zero accountability.

As a last point personal recognizance bonds take a significant portion of financial gain from the state of South Carolina. A surety is financially bound to the successful completion of a defendants’ case until disposition. If the defendant fails to uphold their responsibility the surety is bound to produce the defendant or financially reimburse the state of South Carolina for the loss incurred. Leaving a large pool of funds available to the state to collect upon. These funds can then be utilized to further progress the state of South Carolina. This pool of funds does not include the money saved through a private company monitoring, skip-tracing, providing court reminders, and apprehending absconded defendants. All these actions require taxpayer money when a secured surety is not involved.

In closing it is important for the public to be involved in the criminal justice process, and understand completely the actions taken. An unsecured personal recognizance bond will often be presented to the public as a secured surety bond. When viewing bond information be sure to look for the difference, and understand if the defendant has been released on an unsecured personal recognizance bond or a secured surety bond. When doing this you will be surprised to see how many violent offenders are released on unsecured bail.  As citizens it is important to view the statistics of these forms of release as to appearance rates, recidivism rates, victim safety, and financial responsibility. Victims right to know bills are a form of protection for the public to demonstrate how their tax dollars are truly being utilized for public safety. All funds are produced by the public through taxation for criminal justice actions. Therefore, the public should maintain the right to know how their tax dollars are being allocated. Private surety is the only means where the public is obsolete from the payment of criminal activity.

Purpose for Bail

The criminal justice community typically recognizes a bail bond as a means for releasing a defendant from custody pre-trial. This assumption is correct in that a byproduct of posting bail is that the defendant is released from custody. However, the bail is posted for an entirely different purpose. In its simplest form a bail agent will act as surety in behalf of the defendant for a 10% premium based on the aggregate amount of bail set by a magistrate judge. Most people believe the bail agent is paid simply to gain the release of a loved one from custody. This could not be further from the truth. Bail is posted in order to secure the appearance of the defendant at future dates as required by the court of competent jurisdiction. Bail is accepted by the state as a financial risk  pledged by the bail agent ensuring the defendant appears at each court date required until disposition. For example, a magistrate judge deems a $10,000 bond necessary to ensure the appearance at future court dates  for a defendant. Should the surety deem the defendant desirable risk they may post bail for this individual. The bail agent would typically charge $1,000 premium, and require a family member to sign indemnification paperwork to guarantee the defendants appearance. The surety would then post a bail bond with the court of competent jurisdiction; in turn securing the release of the defendant pre-trial. Now that the defendant has been released the bail bond agent is financially responsible for the defendants competent fulfillment of the contract (appearance at all required court dates). If the defendant fails to appear in court the bail bond agent now has two options.

  1. The bail bond agent is granted 90 days post the issuance of a bench warrant to apprehend the absconded defendant. If the agent successfully places the defendant in custody upon an affidavit of surrender the surety may be relieved of their financial responsibility.
  2. If the bail bond agent is unable to place the absconded defendant into custody the bail bond will be forfeited. A forfeited bail bond means the bail agent must pay the state the aggregate bail amount pledged. In the example the bail agent would be responsible to pay $10,000 to the state.

If the need to post bail for a loved one should ever arise it is important to maintain the mindset that bail is not posted to get someone out of jail. Bail is posted to guarantee the state that a defendant will be present to stand trial for an accused crime. The bail agents financial pledge allows the state to ensure appearance of defendants by placing a financial risk on the bail agent. A defendant being released from custody is simply a byproduct of posting a bail bond, while the necessity of bail is found in the financial pledge of a bail agent to the state. This financial pledge ensures appearance to all court dates required until disposition, or the bail agent will forfeit the aggregate amount of bail to the state.

Introduction to the Blog

First let me introduce myself, Donald F. Mescia III, I am a Cum Laude graduate from the University of South Carolina Beaufort in Sociology, and High Distinction graduate from Liberty University in Criminal Justice and Public Administration. Through my time as a college student I have worked as a bail bondsman through a company my father started 28 years ago. I have grown up in this industry, received my bail license at 18, and like to say my 6 years of college also served as an internship in the bail bond industry. I have started this blog to inform the public about the little known bail bond industry; especially as it is concerned with the state of South Carolina, and more importantly on the local scale of Charleston, SC. In my experience many of those in the criminal justice community do not fully understand the service a bail bondsman provides to local agencies, state agencies, federal agencies, and the general public. Through my education, in criminal justice, I have seen first hand how the bail bond industry is taught. As criminal justice students we are taught that bail bonds companies take 10% of an aggregate bail amount set by a magistrate judge in order to secure the release of a defendant from custody pending trial. This was the full extent of the teachings throughout my collegiate career. Through first hand experience I can guarantee that this industry spans far and wide from this watered down explanation of an entire industry. Therefore, I have created this blog to explore the depths of this industry in order to provide the public with a greater understanding of the entire bail bond industry.