New York Times

When Bail Feels Less Like Freedom, More Like Extortion

March 31, 2018

By JESSICA SILVER-GREENBERG and SHAILA DEWAN

Most bail bond agents make it their business to get their clients to court. But when Ronald Egana showed up at the criminal courthouse in New Orleans, he was surprised to find that his bondsman wanted to stop him.

A bounty hunter was waiting at the courthouse metal detector to intercept Mr. Egana and haul him to the bond company office, he said. The reason: The bondsman wanted to get paid.

Mr. Egana ended up in handcuffs, missing his court appearance while the agency got his mother on the phone and demanded more than $1,500 in overdue payments, according to a lawsuit. It was not the first time Mr. Egana had been held captive by the bond company, he said, nor would it be the last. Each time, his friends or family was forced to pay more to get him released, he said.

As commercial bail has grown into a $2 billion industry, bond agents have become the payday lenders of the criminal justice world, offering quick relief to desperate customers at high prices. When clients like Mr. Egana cannot afford to pay the bond company’s fee to get them out, bond agents simply loan them the money, allowing them to go on a payment plan.

But bondsmen have extraordinary powers that most lenders do not. They are supposed to return their clients to jail if they skip court or do something illegal. But some states give them broad latitude to arrest their clients for any reason — or none at all. A credit card company cannot jail someone for missing a payment. A bondsman, in many instances, can.

Using that leverage, bond agents can charge steep fees, some of which are illegal, with impunity, according to interviews and a review of court records and complaint data. They can also go far beyond the demands of other creditors by requiring their clients to check in regularly, keep a curfew, allow searches of their car or home at any time, and open their medical, Social Security and phone records to inspection.

They keep a close eye on their clients, but in many places, no one is keeping a close eye on them.

“It’s a consumer protection issue,” said Judge Lee V. Coffee, a criminal court judge in Memphis. Before recent changes to the rules there, he said, defendants frequently complained of shakedowns in which bondsmen demanded extra payments. “They’re living under a constant daily threat that ‘if you don’t bring more money, we’re going to put you in jail.’” The pressure, the judge said, “would actually encourage people to go out and commit more crimes.”

Unlike payday lenders, the bail bond industry deals with potential criminals whose very involvement with the law raises questions about their trustworthiness. But in the United States criminal justice system, the Supreme Court has affirmed, liberty before trial is supposed to be the norm, not the exception — the system is intended to allow defendants to stay out of jail.

Some bail bond practices have drawn the ire of judges who complain that payment plans are too lenient on people accused of serious crimes, allowing them to get out for just a few hundred dollars or even no money down. Those judges say it should be more difficult for the accused to walk free.

Other judges see some bondsmen as trampling the rights of defendants. One judge in Lafayette, La., Jules Edwards III, held in contempt two bondsmen who were brothers for intercepting a defendant on his way to court and sending him, instead, to jail.

The judge said the commercial bail industry had put its financial interests above justice and public safety. “If he’s not in compliance with the contract, sue him. How do you get to snatch his body and hold him hostage?” Judge Edwards said in a phone interview.

He added that defendants do not have to go with their bondsmen unless there is a warrant out for their arrest, but many of them do not know that. “What they’re doing is intimidating and coercing and lying,” he said. The brothers declined to comment.

In both Mr. Egana’s case and this one, the bondsmen would not have been on the hook for the defendants’ failure to appear, because they diverted the defendants from court dates for unrelated cases, not the ones for which they had bailed them out.

The bond agency, Blair’s Bail Bonds, stopped Mr. Egana, who had prior felony convictions, from going to court on charges of fleeing an officer, but had bailed him out in June 2016 after he was arrested on charges of possession of marijuana, a firearm and stolen property.

Had Mr. Egana been wealthier, he might have been able to post his full bail of $26,000, then gotten it back when he returned for court. But like most defendants, Mr. Egana had to turn to a commercial bail bond agent that charges a nonrefundable fee for the service of guaranteeing the bond.

Not only could Mr. Egana not afford the full bail, he could not afford the fee, $3,275. He arranged to pay it in installments. After his release, he said, Blair’s informed him that on top of the premium, he would have to pay $10 a day for an ankle monitor, though the judge had not ordered one. Guilty or innocent, Mr. Egana would never see any of that money again. Blair’s has denied any wrongdoing in the matter.

Some customers feel they have no choice but to pay bond agents’ fees — no matter how outrageous they seem. When a home health care aide wanted to bail her son out of Rikers Island in New York City, she was charged $1,000 to have a courier walk her money a few blocks to the courthouse.

A defendant in a serious domestic violence case in Santa Clara, Calif., suffering from a dangerous heart condition, had to have his ankle monitor removed each time he went to the hospital, and was forced to pay $300 to have it put back on afterward.

A woman in Des Moines woke one morning to find that her 2001 Pontiac Grand Prix had been repossessed during the night. Had she put up her car as collateral in a typical loan, she would have been notified that she had fallen behind and given 20 days to pay.

But instead, the car was collateral for a bail bond for her child’s father. She owed $700 to the bail agents. They not only took the car, but turned the father over to the jail. Ultimately the misdemeanor assault charges against him were dismissed.

The bond agents in the Lafayette, New York, Santa Clara and Des Moines cases declined to comment. But Jeffrey J. Clayton, the executive director of the American Bail Coalition, an industry group, said that credit bonds, as the payment plans are called, should be more tightly regulated and require at least a minimum down payment. However, he said, any rules should preserve the benefit to the customer, namely, “If you have the ability to pay it, just not right now, you can get out right now.”

Bond companies fall into a sort of regulatory gulf between criminal courts and state insurance departments, which are supposed to regulate them but seldom impose sanctions. With rare exception, defense lawyers and prosecutors are too busy with their caseloads to keep bond companies in line. Further complicating things, it is often unclear whether consumer protection laws apply, and insurance departments say they lack the resources to investigate complaints.

In the case of Mr. Egana, who worked as a carpenter, it did not take long for him to fall behind on his payments. But he thought that since he was routinely showing up to court, he would be fine.

He was wrong. The bond company detained him several more times, according to court records. At one point, two men with guns and bulletproof vests came to the home where he was working as a contractor and forced him into a car. Each time, they demanded that his mother pay more money.

Jeffrey Orey, a spokesman for Blair’s Bail Bonds, while denying any wrongdoing, declined to comment on the specifics of Mr. Egana’s lawsuit. He said the company had never charged interest or assessed penalties for late payment. The lawsuit, brought by the Southern Poverty Law Center on behalf of Mr. Egana and alleging violation of consumer lending laws, says Mr. Egana’s mother paid at least $5,450 — or almost two times the original premium — to keep her son out of jail. Some of her money, the lawsuit says, was applied to older debts that Mr. Egana still owed.

“It was kidnapping,” Mr. Egana said. “They saw the love that my mom has for me, and they used that to their advantage.”

In May, Blair’s decided it no longer wanted Mr. Egana as a customer and handed him over to the jail.

Siphoning Millions From Poor

The use of bail bonds has come under attack in recent years because it keeps the poorest, rather than the most dangerous, defendants behind bars.

State after state has taken steps to reduce or eliminate the practice of making that freedom contingent on money. In response, the bond industry has worked to undermine reforms and regulations, arguing that commercial bail is still the most efficient and taxpayer-friendly way to keep the public safe and the courts running smoothly.

The bond agent takes a fee in exchange for guaranteeing the amount of the bail on the defendant’s behalf. But the fee — or premium — usually about 10 percent, is too high for many defendants, the vast majority of whom are poor. So they arrange a payment plan. The debt, paid over weeks or months of installments, can outlast the criminal case.

The arrangement can include steep late fees or require signing over collateral worth many times what is owed. And while defendants, or the family members and friends who often shoulder the costs, typically pay no interest as long as their payments are on time, if they go into default they can trigger annual interest rates as high as 30 percent.

The use of financial conditions for bail has not always been as widespread as it is today. In 1990, only 24 percent of those released from jail before trial were required to pay. That number soared to almost 50 percent in 2009, the most recent year for which national figures are available. In some jurisdictions, the number is far higher: In New Orleans in 2015, 63 percent of misdemeanor defendants and 87 percent of felony defendants had to pay to be released before trial, according to a study by the Vera Institute of Justice, a nonprofit that seeks to improve the criminal justice system.

Commercial bail fees, often scraped together by multiple family members, siphon millions from poor, predominantly African-American and Hispanic communities. Over a five-year span, Maryland families paid more than $256 million in nonrefundable bail premiums, according to a report by the state’s Office of the Public Defender. More than $75 million of that was paid in cases resolved with no finding of guilt, and the vast majority of it was paid by black families.

In 2015, New Orleans families paid $6.4 million in premiums and fees, the Vera Institute of Justice found. In New York City last year, bond companies collected between $16 million and $27 million, “a sizable transfer of wealth,” noted Scott Stringer, the city comptroller, “to the pockets of opportunistic bail bond agents.”

The poor pay more than the rich: Some bond agencies offer lower rates to those who are union members, hire their own lawyer rather than use a court-appointed one, or put up more valuable collateral.

The entire premise on which the commercial bail system is built — that when defendants skip bail, someone must either find them or pay, is somewhat illusory.

The image of the industry, encapsulated by Dog the Bounty Hunter chasing down outlaws on television, is one of danger and high stakes.

But in most cases where defendants miss court, a bond agent may not have to do anything. Many states allow months for a defendant to be found. In Texas, bond agents have nine months before a felony bail is forfeited. In Colorado, according to the American Bail Coalition, even after a bond is paid, the agent has two years to find the missing defendant and get the money back.

With so much time, many defendants will resurface on their own, or be caught during a traffic stop or other law enforcement interaction, without any effort on the bond agent’s part.

In a report last year, government auditors in Utah criticized the long grace periods, saying that more than 70 percent of defendants who skip court show up within a month. Over the course of a year, the auditors found, less than 2 percent of bonds were forfeited.

“If you’re not holding bond companies accountable at every turn, they can wriggle out of a forfeiture,” said Alison Filo, a prosecutor in Santa Clara, Calif., where the district attorney’s office has begun in recent years to pursue payments from bond agents. Ms. Filo said there were some counties in her state where forfeitures were never collected.

The system, though, has worked well for the industry, even attracting private equity investors. Mom-and-pop bail companies are backed by large surety companies, which guarantee the full amount of the bond in exchange for a portion of the premium.

Together, the surety companies and the bail bond agents collect about $2 billion a year in revenue, according to an analysis by Color of Change, a nonprofit focused on racial justice, and the American Civil Liberties Union. “Bail insurers have shaped the entire industry, as well as the laws they operate under, to safeguard their profits at the expense of people’s lives,” said Rashad Robinson, the executive director of Color of Change.

While most insurance companies expect losses of up to 50 percent, one surety company, Continental Heritage of Florida, had no losses in its bail division for almost two decades. And an industry giant, AIA Bail Bond Insurance Company, said it underwrote more than $800 billion in bonds in 2016. Its losses: zero.

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