Upholding The Bail System While Protecting The Rights of the Accused
In the on-going debate whether to abolish the use of a private, for-profit bail system, on the one hand, those against it are saying that commercial bail bonds undercut the nation’s justice system by allowing affluent defendants to walk free while low-income people remain incarcerated as they wait for trial. On the other hand, are the bail agents and surety bond companies pointing out that abolishing the bail system would destroy the constitutionally-approved industry and cause detrimental effects to the nation’s criminal justice system.
Already, there are four states, including Colorado, Oregon, Kentucky, Illinois and New Jersey which have decided to rule the use of commercial bail as unconstitutional. On November 8, the state of New Mexico has voted to curtail or scrap the use of bail bonds and amended its constitution giving judges the authority to keep suspects accused of felonies to sit behind bars without posting bail bonds, if they are deemed a danger to the community.
Proponents of the constitutional amendments in New Mexico cited as an example the case of 62-year-old Tom Chudzinski who was arrested on June 23 while his motorhome was parked in Albuquerque on suspicion of drunk driving.
The arresting police did not see Chudzinski driving, but he was smelling alcohol on his breath when the officers knocked on his motorhome. Chudzinski was taken into custody after he was suspected of crashing his RV into a parked vehicle earlier that day.
Despite the minor offense, Chudzinski’s bail was set by the judge at $500, which means he needed only $50 to pay a bail bondsman to secure his temporary release while his case was pending. But the retired architect, who has no regular means of income, was not able to cough up the $50 and spent 34 days behind bars before his case was finally dismissed for lack of evidence.
Then there is also the case of murder suspect Walter Brown who languished in jail for more than two years before trial because he could not afford the bail set by the judge for his temporary liberty.
New Mexico’s Supreme Court Justice Charles Daniels, who is one of the leading advocates to reform the state’s commercial bond policy, has called on judges to use the bail system to serve its original purpose. And that is to ensure that defendants appear in court.
However, on the flipside of the coin, granting judges too much discretion on the use of the bail system and even deciding to keep a defendant in jail without bail, would deprive surety bond companies and bail bondsmen of their livelihood.
Gerald Madrid, president of the New Mexico Bail Bond Association, is still undecided if the amendment to the state’s constitution is the best way moving forward to preserve the state’s justice system. He commented, “I’m still not sure if this is a good solution to the problem because I think there’s going to be more defendants on no bond holds in jail right now. In other words, they can’t get out. They’re in jail until the case is resolved.”
In California, the California Bail Agents Association has petitioned the court to declare as an interested party and be allowed to defend the commercial bail system in a lawsuit filed in 2015 in San Francisco after City Attorney Dennis Herrera described the money-based system as “unconstitutional.”
The CBAA said they filed a motion to intervene to protect the interest of the bonding industry and the bail bondsmen after Herrera made it known that he would not backtrack from his earlier pronouncement that the pre-arraignment bail system denies poor defendants of their rights to liberty by keeping them in jail only because they could not afford to pay their bail.
The CBAA told the court in their motion, “If Plaintiffs’ requested relief is granted, not only would CBAA’s interests in existing bail bond contracts be wiped out, but CBAA’s entire, constitutionally-approved industry would be destroyed, with detrimental effects on California’s criminal justice system.”
Under existing state law, all the counties in California are required to post a schedule that automatically computes the amount of bail to be paid by a defendant to secure a pre-arraignment release.
While many agree that the justice system needs to be reformed, there must be some guarantee that defendants will appear in court. Admittedly, the bail bond business makes money off the commercial bond system, but they also ensure that defendants show up in court.
The justice system cannot always rely on the goodwill of the defendant and show up in court by promising they would once they are released. There must be consequences if they don’t.