Financially secured bail

This week’s hare-brained alternative to Real Accountability

Just ask the fugitives to pretty please come to court.

The preface: What we do is simple. We secure the pretrial release of accused defendants by entering into a written agreement with the State. This agreement (called a bail bond) guarantees the State that we will have the accused defendant in court each and every time as required in order for their criminal case to be adjudicated. If the defendant fails to appear and becomes a fugitive, we go out and locate, apprehend and surrender him or her back to the jurisdiction of the court. If we fail in this obligation, we pay a substantial cash penalty to the State, usually an amount equal to 1,000% of what we grossed for writing the bond. We are excellent at what we do, since bondsman who fail in their obligations quickly go out of business. In summary:

  • We secure their release from jail and pledge real money to the State to secure their appearance.
  • When a defendant fails to appear we locate, apprehend, and surrender them to jail.
  • In the rare cases where we are unable to arrest and return the fugitive, we pay a substantial cash penalty to the State.

We do this quietly and efficiently and at no cost to the taxpayers. We don’t bill the State for all the days that our defendants are not taking up jail space, nor do we bill taxpayers for routinely arresting and returning our bail skips. We play a vital role in the criminal justice system.

When you remove real accountability from pretrial release decisions, the results are predictable.

For example, in Philadelphia, where the courts routinely utilize government-run bail schemes instead of financially secured pretrial releases, defendants fail to appear in great numbers and no one is held accountable.

In December of 2009 The Inquirer reported that Philadelphia’s court system was in complete disarray. In an outstanding special report titled Justice: Delayed, Dismissed, Denied, they reported that some 47,000 wanted fugitives were on the street:

“The court’s bail system is broken. Defendants skip court with impunity, further traumatizing victims who show up for hearings that never take place.

There are almost 47,000 Philadelphia fugitives on the streets. Philadelphia is tied with Essex County, N.J. – home of Newark – for the nation’s highest fugitive rate. To catch them, the city court system employs just 51 officers – a caseload of more than 900 fugitives per officer.

In a sign of the system’s disarray, court officials had trouble answering when The Inquirer asked how much fugitives owed taxpayers in forfeited bail. At first, they said the debt was $2 million. Then they pegged it at $382 million. Finally, they declared it was a staggering $1 billion.”

The solution to having so many fugitives would seem obvious. Hire additional officers to go locate and arrest these criminals. And stop releasing defendants on unsecured fantasy bail bonds where no one is held accountable for their appearance in court. Instead, Philadelphia officials had a better idea. They simply erased 19,400 warrants from the system. Seriously. From the Inquirer:

“But in a sweeping move to lower Philadelphia’s staggering tally of 47,000 fugitives, top court officials have quietly dropped criminal charges against Sanchez and more than 19,000 other defendants who skipped court.

At the urging of Pennsylvania Chief Justice Ronald D. Castille and District Attorney Seth Williams, Philadelphia judges closed criminal cases and canceled fugitive bench warrants for thousands of accused drug dealers, drunken drivers, thieves, prostitutes, sex offenders, burglars, and other suspects.

“They were clogging up the system,” said Castille, a former Philadelphia district attorney. “You’re never going to find these people. And if you do, are you going to prosecute them? The answer is no.”

Of course the Inquirer was able to find some of these fugitives.

“I’m ecstatic,” said Reginald Newkirk, who had been facing two drunken-driving charges. Reached at his current home in Watha, N.C., Newkirk was told that the charges had been withdrawn. “I’m glad to hear that.”

In Newkirk’s 1991 arrests, police determined that his blood-alcohol levels were 0.273 and 0.277 – almost three times the legal threshold for intoxication at the time. Asked whether he had been drunk at the time, Newkirk, now 61, replied, “More or less.”

Another fugitive, Alfred Carter, who fled in 1989 before he was sentenced for a strong-arm robbery, is now living in Washington.

His conviction was set aside in an attack in which he admitted he left his victim dazed, weeping, and bleeding on a sidewalk in West Philadelphia.

“That’s good,” said Carter, 60. “I’m glad it’s dropped.”

And what about the nearly $1 billion owed by bail jumpers and their families who signed? Like the warrants, Philadelphia officials just pushed a button and made the problem disappear.

“In a single act, nearly $1 billion in debt owed to Philadelphia by onetime fugitives has disappeared.

Philadelphia’s court system, at the request of the city, wiped off the books longtime debt owed by tens of thousands of criminal defendants who failed to appear for their court dates.”

The order follows extensive reforms that came after The Inquirer published a series of articles in 2010 that shed light on widespread systemic problems in the city courts, including an ineffective bail system that for decades imposed no consequences for skipping court.

Criminal defendants are required to post 10 percent of bail in cash to earn release. Before recent court reforms, many routinely fled – on paper forfeiting the remaining 90 percent owed – but in practice little was done to catch them or collect the debt.”

In summary, Philadelphia has tens of thousands of fugitives because they are released from jail on unsecured bonds with no financial incentive to appear in court and no real accountability. Their solution to this horrendous problem was to purge the warrants and pretend that it never happened. Score one for the criminals; the accused defendants who actually went to court were saps. The same environment created $1 billion in uncollected (and unsecured) bail forfeitures. Philadelphia officials had a similar solution. They pushed a button and made the $1 billion in fantasy bail forfeitures disappear. Score another win for the criminals.

In Florida, where I live and write bail for a living, I have 60-days in which to timely satisfy a bail forfeiture, either by producing the fugitive defendant or by paying the forfeited bail amount. If I fail to do, I am prohibited from writing additional bail. I am literally put out-of-business for failing my obligation to the State. In addition, a civil judgment is entered against me and against the insurance company that backs my bail. If the insurance company fails to pay the judgment timely, they are prohibited from writing any bail. This is called accountability.

You would think that Philadelphia — in the light of the consequences of their experience with unsecured bail with no real accountability — would be open to instituting a pretrial release system with secured, financially accountable bail. You would be wrong.

Which brings us to our whack-job of the week. Cherise Fanno Burdeen. Cherise Fanno Burdeen is the Executive Director of an outfit called “Pretrial Justice Institute”. Ms. Burdeen is a staunch detractor of “money” bail. (Her position on “money” grocery stores and “money” police officers is unknown at this time.)

Cherise Fanno Burdeen, Just say "pretty please!"

Cherise Fanno Burdeen,
Just say “pretty please!”

Cherise Fanno Burdeen has a better idea than secured pretrial releases and real accountability. She thinks we are missing the point if we have the nerve to actually jail criminals who fail to appear for court. Here is what she told the Inquirer:

“The vast majority of people who fail to appear in court are not . . . trying to evade justice. For the most part, these are people who the courts don’t provide robust reminder systems, much like you or I get for haircuts or doctor’s appointments. The courts didn’t provide practices that doctors’ offices and salons learned a long time ago can nearly eradicate failure to appear.”

So if you are a bondsman who can’t celebrate Memorial Day Weekend with your family because you are busy chasing down a wanted fugitive, keep in mind that it’s your own fault. According to this dingbat Cherise Fanno Burdeen, you should have sent your client a friendly reminder and simply asked him respectfully and politely to “pretty please” go to his court date.

Amazingly , according to the Inquirer, Philadelphia now intends to actually use this mild-mannered lame-brained and naïve approach. 

When the number of open felony warrants sky rockets once again, city officials will know exactly what to do.

Envisioning the End of “Money Bail”

A glimpse into a criminal justice system where no one is held accountable for the accused defendant’s appearance in court.

∞   ∞   ∞  ∞   ∞   ∞   ∞   ∞   ∞   ∞

The money police officer’s many years of experience tells him that something is not right. As he parks his money patrol car and steps out to talk with the young man who has aroused his suspicions, the young man suddenly bolts, sprinting down the sidewalk in complete disregard of the money officer’s shouted orders to stop. The suspect is wearing money designer sneakers but the officer is a regular at his money gym and quickly runs him down. He cuffs the young man. His suspicions are confirmed when he finds a small amount of money drugs in the young man’s pocket. He reads the suspect his rights and places him under arrest. The officer attempts to utilize the new money database system in order to fully confirm the young man’s identification and check for holds, but the money database is — as is usually the case lately —slow and buggy. The officer then un-cuffs the young man and issues him a citation. The money officer also verbally confirms the written citation and advises the young man that he must appear in court for his case.

The young man laughs and laughs when he later describes this encounter to his friends.

The young man misses his court date.

Due to the extremely high number of open bench warrants, the money judge orders the Clerk to instead set another court date and mail the young man another notice to appear.

∞   ∞   ∞  ∞   ∞   ∞   ∞   ∞   ∞   ∞

It occurs to the defendant once again that he is in really big trouble. In spite of the chilly temperature of the courtroom, beads of sweat appear on his upper lip as he listens to the State read the criminal charges that they are filing against him. Following the proceeding, the money lawyer advises him that the money bailiff doesn’t want them talking in the courtroom hallway. So they cross the street to the money Starbucks. After ordering money coffee, the money lawyer advises the defendant that his fee for representation will be $120,000.00. The defendant flinches at this but the money lawyer reminds him that the government is claiming that he fleeced millions of dollars from the taxpayers.

Without committing to the payment of his fee, the defendant advises the money lawyer that he will call him soon. The money lawyer leaves in his money Lexus.

The defendant sips the last of his money coffee and wonders how far $120,000.00 will go in Costa Rica.

∞   ∞   ∞  ∞   ∞   ∞   ∞   ∞   ∞   ∞

After being booked into the jail, the defendant meets with a disinterested clerk in a small office. The clerk advises him that he needs to drop urine once a week at a cost to him of $40 per visit.

“But my case isn’t even a drug case,” says the defendant.

The clerk appears annoyed by the question. She appears annoyed by the defendant.

“This is the only way you leave jail, understand?” It’s a question but she isn’t asking him anything. The defendant wonders what happens if he cannot afford to pay $40 each week but is afraid to ask her.

Instead he asks, “How long is this for?”

She says for as long as your case is open, which will be a lot longer if you miss any of the weekly drug tests.

∞   ∞   ∞  ∞   ∞   ∞   ∞   ∞   ∞   ∞

The money judge orders the defendant to be released from jail on a GPS monitoring bracelet.  This is the best the money judge can do, ever since they eliminated money bail. The defendant is ordered to pay $214 each month for his electronic “monitoring.” He will need a credit card and a land line at his house. He has neither.

“Get them,” says the judge.

Months later the defendant feels the hot tears of shame and embarrassment roll down his face. He can take the teasing from friends but he really likes that girl. With the bracelet strapped to his ankle he has no chance to be with her.  Or of getting past her father. He makes an impulsive decision to cut the strap and utters a vow under his breath that he doesn’t care what happens.

Nothing does happen. The credit card on file for his GPS bracelet is cancelled. Six months later the state noll prosses his case. No one ever asks him for the bracelet.

∞   ∞   ∞  ∞   ∞   ∞   ∞   ∞   ∞   ∞

The defendant has lived in the city for his entire life. He is charged with a non violent crime. In theory, of course, he is innocent until proven guilty. But he scores out as an unacceptable risk on the test they gave him at the jail. He doesn’t understand the test. Neither do the jailers who administer it. His number is too high. Maybe it is because of his past convictions. He has a history. He may be presumed innocent on this case but his high score gets him pretrial detention. There is no money bail to assure his appearance. His risk assessment score seals his fate. He sits in jail.

∞   ∞   ∞  ∞   ∞   ∞   ∞   ∞   ∞   ∞

Of course some money judges refuse to play along. They refuse to release accused defendants simply on empty promises to appear. They want someone to be held accountable. Absent the use of effective real secured money bail, they allow the defendant’s family to put up a refundable (mostly) 10% with the balance of the bail bond due as a punishment if the defendant fails to appear as required.

Mom pays $500 to the jail to get her son released. She signs her son’s bond guaranteeing to pay the $5,000.00 bond if her son fails to appear.

When her son fails to appear the judge issues a warrant for his arrest and forfeits his bail in the amount of $5,000.00. But no one ever makes any real effort to collect the forfeited bail amount from Mom.

Years later, intrepid journalists inquire why the Court never collected millions of dollars in forfeited bail. After countless blue ribbon panels and studies and endless discussions, the State concludes that the best course of action regarding the millions in uncollected bail forfeitures is to write it off as uncollectible.

Mom can’t afford it, they reason, and it would be a hardship if the State pushed her to pay her obligation. Besides, it can’t be easy having a son who is a fugitive. Actually, if you check the record, it is even worse than that. The poor woman has four children.

It turns out that they are all fugitives.

What makes a bail bond “good”?

The grizzled veterans who have been around a while will say that a stamped certificate of discharge from the Clerk of the Court is the only thing that makes a bail bond good. There is some obvious truth to this. When the obligation on the bail bond has been satisfied with no failure to appear by the defendant it’s a unquestionably a “good” bond. Of course this status is being established after the fact.

Certificate of DischargeHow do we make a bail bond good?

We recently posted a very large bond. During the process of putting it together I was reminded of something that the late Barry Hodus used to say. Hodus was a legendary bondsman and quite a character in South Florida courtrooms. Hodus would often bellow, “If they had all of the premium and they had all of the collateral, what would they need me for?”

His point is well taken. Anyone can assess that a bail bond is “good” if the parties have the entire premium due and full collateral. What Barry Hodus meant is that it takes a real bondsman to assess the risk and determine how to make the bond good, in the absence of being fully covered against a possible financial loss. Hodus could look each of the potential indemnitors in the eye and quickly figure out what it would take from them each in order to make it work.

On our recent large bond, there was no way we were ever going to have sufficient collateral to cover the entire bond amount. The family simply didn’t have it. As is often the case, the client is not so much of a criminal, per se. However, he definitely has a capacity for spectacular idiocy, almost certainly aided by large quantities of alcohol. He has a loving family, willing to go to bat for him. How much, depends on the bondsman and whether or not the bondsman does his job.

Mom says she will help but her boyfriend is not her son’s father and so won’t put his house up as bond collateral. The bondsman says, “Well then, good luck and if you ever decide you do need me, please give me a call.”

“Wait! You won’t help?”

“If your boyfriend knows your son and knows you and won’t risk his house, how stupid would I have to be to risk mine when I don’t even know your son?”

A real bondsman professionally explains that he needs everyone in the family fully on board and “all in” in order to assist their loved one.

“Do you know the only person in the world who could put your boyfriend’s house at risk?”

“My son?”

“That’s correct. As long as your son goes to court as required — as long as he refrains from actually becoming a fugitive — your property is safe. You have no existing obligation or debt. You only have a problem if your own son flees. If you are not completely comfortable that he will appear as required, then you shouldn’t proceed. And neither should I.”

A real bondsman will secure everything that they have, even though the dollar value may be far less than the bond amount. A real bondsman is not timid or worried about the competition. Barry Hodus had no competition. And a real bondsman is straight, often to the point of bluntness, with his client.

“The properties that your families put up do not have enough value to cover your bond.  But if you flee and become a fugitive, I will sell the properties in order to fund your capture. They will lose their homes and you will be caught. But of course that won’t happen because you’ll go to court as required in order to resolve your case.”

“And make sure you thank each person in your family. They put everything on the line for you.”

By bringing everyone on board on the large bond we wrote, we made a day’s pay and we made the bond as good as we possibly could.

Years ago, a timid bail agent (worried about the competition) decided not to ask the defendant’s mother to put up her house. She would have likely done so if the agent had asked her for it and carefully explained to her what it meant. But the agent didn’t ask. The only collateral security that the agent took on the bond was an Indemnity Agreement signed by mom.

When the defendant failed to appear in court and the bail bond was ordered forfeited, the bail agent called his mother.

“But Ma’am, you are financially liable for the $15,000.00 bond forfeiture. You need to tell me where your son is?”

“Son, I am 85-years-old. My son is a full grown man. If you have a problem with him, please deal with him and not with me.” 

“But Ma’am, you are responsible. We could sue you for the bond amount because of what you signed.”

To which she laughed and laughed and said, “What, you are going to ruin my credit? I really don’t care what you do. Do what you need to do. Have a nice day!”

If the bail agent had been a real bondsman and secured the mother’s modest home as collateral, the conversation following her son’s failure to appear would have surely been very different.

“Yes, sir. Would you like me to bring my son by your office or should I bring him to the jail to meet you?”

And what of our recent large bond? Is it a good bond?

I’ll let you know if the stamped certificate of discharge shows up.

Thirty-three hours after being released from jail upon a promise to appear, drunk driver kills himself and four innocent people.

A suspended driver’s license didn’t deter 61-year-old James Pohlabein from driving his 1997 Chevy Silverado while drunk. At about 2:30am on Thursday, February 11, 2016 he lost control of his car and crashed it into a parked car. He hit it hard enough that the parked car slammed into another parked car.

It’s a safe bet that the Ohio police who responded to the scene had little difficulty in determining that Pohlabein was drunk. They arrested him for operating a motor vehicle without reasonable control and driving while intoxicated. The police took Pohlabein to jail.

James Pohlebeln

James Pohlebein, murdered four innocent people

When Pohlabein was dragged before the judge a few hours later, he pleaded not guilty. The presiding judge ordered Pohlabein released on his own recognizance.  He was let out of jail about 7pm on Thursday night, conditioned solely upon his own promise to appear.

No one has to worry about Pohlabein keeping his promise to appear in court to face criminal charges of driving drunk.

Approximately 33 hours after being released from jail — at about 3am on Saturday February 13 — Pohlabein was driving his car the wrong way on I-75 at a high rate of speed. It’s evident that he was committing the same crimes that caused his earlier arrest. He was driving blind drunk on his still suspended license and completely out of control. A witness called 9-1-1 to report their own narrow miss with the wrong-way car. But it was a futile call.

Pohlabein drove his car head-on into an oncoming SUV and murdered all four of its occupants. Four young, innocent, vibrant, useful and loved people died at the scene: Kyle Canter, 23; Earl Miller II, 27; Vashti Nicole Brown, 29; and Devin Bachmann, 26. Perhaps mercifully, Pohlabein died at the scene as well. It was a horrific and tragic wrong-way accident.

The article in the Dayton Daily News does not mention the name of the municipal court judge who released Pohlabein on his own recognizance. Nor will I. It is not the intent of this blog post to second-guess the judge’s decision. No one can accurately predict or guarantee human behavior. As both a human being and a judge he most certainly must feel horrible about what happened.

I would like instead to foster a discussion about a natural consequence and benefit of private, financially secured bail. What would have happened if Pohlabein had to post a secured bail bond, rather than simply issuing a promise to appear?

In such case — absent possessing the entire penal amount of the bail bond in cash — the accused defendant has to make a phone call. He needs help to secure his release. He cannot get out of jail by himself. So he calls a bail bondsman. What does the bondsman do first? The bondsman first brings the friends and family members of the defendant into the picture. The bail agent enlists people who are willing to be accountable and responsible for the accused defendant’s appearance. The bail agent needs people who will vouch for the defendant. As every bondsman knows, this is even more important than obtaining the premium for posting the bail bond. The bondsman needs people willing to help the accused and willing to participate in the posting of his financially secured bail bond.

A significant number of people who find themselves arrested are in the grips of alcoholism and/or drug addiction. Such was almost certainly the case with James Pohlabein. His former wife said that months earlier he had sent her text messages saying he wanted police to kill him after the death of his brother. A former neighbor of Pohlabeln said he drank frequently and that she had witnessed him stumbling “half-drunk” out of his car on several occasions. After the horrific wrong-way crash, the same neighbor told reporters, “He was always drunk” and “Somebody should [have done] something because everybody knows that he’s drinking like this.”

What would have happened if a bail agent had to speak to the ex-wife and the former neighbor of Pohlabeln in order to secure his bail bond? What if the bail agent had to speak to relatives of Pohlabeln before he could be released from jail?

Denial is a defining characteristic of sufferers afflicted with alcoholism and drug addiction. (“I don’t have a problem! You have a problem!”) In the warped world view of the active alcoholic it is all-too-often the parked car’s fault. Or whoever parked the car there — it’s their fault!

The purpose of a bail bond is appearance in court, make no mistake. But the process of obtaining a financially secured bail bond through a licensed bail agent requires bringing friends and family of the accused together. It is not uncommon for this to lead directly to an intervention with the accused. For many of our clients the arrest and — more importantly — the participation of family and friends, leads the accused to move beyond his denial. They begin to accept at last that they have a serious problem. It is a truism that admitting there is a problem is the first step in recovery.

I have no idea whether James Pohlabeln had anyone left in his life willing to vouch for him, to be accountable and to help. But I do know many of our clients turn their lives around and find the help they need following an arrest and the posting of their secured bail bond. I do know that as bail agents we often get to play a small but vital role in helping families to heal. During the course of doing our jobs, we often times bring families together and get a front row seat to miracles. We get to watch our clients find the help they need and transform their lives. This is often the most rewarding aspect of being a bail agent.

Again, I am not second guessing the judge who released James Pohlabeln on his own recognizance. But I cannot help but wonder what might have occurred had he been required to enlist the help of responsible family members and friends in order to secure his release from jail.