Criminal Law Article

Changing Rules for Bail Bonds

The Arizona Supreme Court is leading the charge among the nation’s courts to change the rules for setting bail in criminal cases.  In recent years, there has been growing concern about the inequities in the bail bond system and about the effectiveness of bail in deterring flight risk.  Dave Byers, the administrative director for the Arizona courts described the need for change in a recent interview:

“Over time, people have realized that we’re one of only 2 countries in the world that require people to pay somebody some money to get out of jail – I think it’s us and the Philippines.  What people determined is when you impose money in the system, the only thing you’re really doing is separating people who have money from people who don’t have money.”

The income disparity described By Byers is at the heart of the drive for rule changes.  The Arizona State Legislature has looked at bail reformation issues, and several bills on the subject were proposed, but thus far, none have passed.  The Arizona Courts, under the leadership of Scott Bales, Chief Justice of the Arizona Supreme Court, have decided to move forward on their own.  The courts recently enacted rule changes that would allow more low-income, low-risk defendants to be released on their own recognizance while awaiting trial.

Studies Have Shown that Requiring Bail Does Not Lower the Defendant’s Risk of Flight.

Even without research, common sense tells us that a wealthy drug lord who posted a 1 Million Dollar bond may flee the country and forfeit the money rather than face 20 years in prison.  After all, to someone like him, $ 1 Million is probably chicken feed.  On the other hand, a homeless guy, arrested for shoplifting, will stay in jail pending trial.  His bail might be set at a mere $250, but with no income or support system, he cannot raise the money.

Research tells us that our common-sense understanding is correct. A 2013 study by the Pretrial Justice Institute found that defendants who paid bail for release from jail were no more likely to show up for trial than those released on their own recognizance who faced a fine if they later failed to appear.   A study by the Laura and John Arnold Foundation described how low-income, low-risk defendants often lose their jobs or housing when they lack the funds to obtain bail.  The poor often linger in jail for relatively minor offenses like shop lifting, drug possession, and theft.  In contrast, affluent defendants, charged with serious crimes, are out on bail. 
While investigating the effectiveness of the bail system, The Arnold Foundation Study looked at more than 1.5 million cases from 300 jurisdictions in the U.S.  Based on the results of the study, the Foundation developed a tool for assessing a defendant’s flight risk and potential danger to the community.

Arizona Change to the Rules of Criminal Procedure.

In December, 2016, the Arizona Supreme Court ordered bail reform changes to the Arizona Rules of Criminal Procedure.  The changes to Rules 7.1, 7.2, and 7.3 were implemented on April 3, 2017.  The courts are now using a version of the Arnold tool to evaluate defendants after arrest. 

Before a defendant’s initial appearance, he or she will be screened by a court employee to determine the level of risk he poses to the community and his risk of flight. The screening test is called a Public Safety Assessment and looks at nine variables, including prior felony arrests and prior instances of failure to appear.  The Public Safety Assessment gives a score that helps the judge or court commissioner decide whether to release the defendant pending trial, to release him with conditions of pretrial supervision, or to hold him in jail until trial. The new rule does not apply to cases where the denial of bail is mandatory under state law.  For instance, it will not apply in sexual assault cases.

The Rule changes are not without critics. Some prosecutors are skeptical about the new system.  There are concerns about the quality of the Public Safety Assessments and about the training and focus of the employees doing the assessments.  Of course, the bail bond industry is completely opposed to the new rules.  They see their livelihoods disappearing.  They have lobbied against the rule changes and have raised concerns about the lack of an adequate collection and enforcement process.  Traditionally, when a defendant failed to appear for a hearing, the bail bond company would dispatch a retrieval agent to track down the fugitive and turn him or her into the police.  It will now be up to local police departments to assume that role.  We can only assume that tracking down someone who failed to appear on a shop lifting charge will not be high on their priority list.  The other concern is collections.  If the courts fine defendants for failing to appear for a hearing, what is the mechanism for collecting those fines? 

Judges Still Have the Option to Set Bail for a Defendant.

Despite the rule changes, judges still have the option to require a financial based bond.  However, the judge “must impose the least onerous” type of bail bond necessary in the lowest amount necessary to protect the community and other people in the defendant’s life.  There may be times when a judge believes a suitable bail amount will serve to deter a particular defendant from fleeing the jurisdiction.  In that event, the old bail procedures will still serve.  The family can go to a bail bondsman once the bail is set, or the family can pay the bond directly.  To pay a bond directly, you must know the inmate’s full name and date of birth.  You must know the booking number for the inmate.  Obtain a postal money order, a Western Union money order, or a cashier’s check in the exact amount of the bond. In Maricopa County, the check is made out to the Maricopa County Sheriff’s Office.  Payment can be made at the Madison Street Jail.  In Pima County, checks and money orders are paid at Pima County Adult Detention Center. 

If the bail is large and family members need to use their home or other real estate as surety for the bond, the process is more complicated.  The property will need to be appraised, documentation provided that proves the person posting the bond’s equity in the property, and a trust deed made out to the clerk of the court.  The court then issues an order to authorize the property to be used as the bond.  This all takes time, so the defendant will remain in jail longer when a property bond is used rather than a cash bond.

Summary

Only time will tell us if the new rules have the desired effect of equalizing justice and decreasing the number of inmates sitting in jail, awaiting trial. Will we see more crimes committed by defendants who are released pending trial?  Will we see more defendants who fail to show up for court dates?  We will need to wait to see what the future holds.

Resources

www.clerkofcourt.maricopa.gov/moneymatters.asp
www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure