By Dennis Bartlett
The Philadelphia courts issued an order this month noting that more than 30 percent of the city’s criminal defendants fail to appear in court. Furthermore, it noted that with 61,000 outstanding bench warrants, authorities can’t even serve all the fugitives, let alone apprehend them. Hence the courts have decided to explore new approaches, mainly by opening the door wider to commercial bail, which has been largely banned from the city.
In a sense, the long debate over whether bail agents should return to Philadelphia has been settled in the affirmative by this order. That’s good news for the city.
Commercial bail agents will hold more defendants accountable, with corresponding public-safety benefits. Bail agents have a superb track record of assuring that their clients appear in court. And commercial bail clients are less likely to engage in misconduct while awaiting trial.
Across the nation, bail agents have proven to be a necessary and integral part of the pretrial process. They help the courts maintain control of defendants in ways that bureaucracies can’t.
Commercial bail has a long history. It is rooted in medieval English common law, under which a surety guaranteed a defendant’s appearance to answer charges. It was a natural, market-driven development. There was a need, and private enterprise stepped in to fill it.
Early in American history, corporations with enough capital and authority to provide surety for others served the public interest. They were able to charge a premium for the service. Instead of burdening friends and relatives with posting bail, those in need of surety could go to a company specializing in it.
More than a century ago, surety bail had become well established in America, and most of the states had enacted statutes allowing public authorities to accept corporate surety bail bonds. Commercial bail continues to be a robust industry to this day.
The commercial bonding community uses a risk assessment tool known as an application and indemnity agreement to collect information about defendants, as well as their family members, friends, etc., particularly those serving as cosigners on a bond. Bail agents interview defendants and their friends and families, and they verify the information they get.
Commercial bail is subject to regulation by state departments of insurance, which ensure that consumers are protected. Insurance departments scrutinize agents’ risk assessment forms for content, presentation, clarity, and usability, making sure defendants’ financial rights are protected.
In the end, these risk assessments work. And as a result, commercial bail agents get more than 97 percent of their clients to court as required.
Law enforcement agencies are short on resources these days. Bail professionals fill the gaps by apprehending absconded defendants. They also help the courts avoid scheduling problems.
In addition, the bonding industry eases jail crowding by taking responsibility for defendants that the courts otherwise could not release. The courts can share responsibility for released defendants with bail bondsmen.
Bail agents are able to deal with the realities of the criminal justice system as they find it. They do not dictate release policies or set bail.
Finally, while no government agency is ever called upon to pay a bail forfeiture, commercial bondsmen always face the possibility of having to make a cash payment to the state if a defendant does not appear in court. That serves as a powerful performance measure.
Dennis Bartlett is executive director of the American Bail Coalition. He can be reached at email@example.com.