- 30 6. Inquiry into the source of funds used to post bond. - on an assessment that it is an ineffective method of assuring appearance. In our experience, the prospect of forfeiting bond is an inadequate deterrent of flight only when the amount of bond is too low a problem that can be addressed by providing, as does S. 1554, the government with a right to appeal conditions of release -- or when the funds used to secure release are the proceeds of criminal activity -- a problem that we suggest can be cured by adopting the recommendation of permitting the courts to inquire into the source of property used to post bond. Thus, Permitting the courts to inquire into the source of property used to secure release is necessary whenever the prospect of forfeiture of property is intended to assure appearance. whether the Subcommittee decides to retain money bond, or decides to adopt the present structure of S. 1554 which includes among the forms of conditional release a provision that the defendant agree to forfeit designated property if he fails to appear, the Department recommends that the bill include a provision for a hearing into the source of the property offered as the means of securing release. Mr. Chairman, that completes my statement, and at this time I would be pleased to try to answer any questions that you or other members of the Subcommittee may have. DOJ-1981-10 Mr. RADER. Pursuant to Chairman Hatch's direction, our next witness this afternoon will be Mr. Jerry Watson. He will represent the Professional Bondsmen of the United States, a large association of professional bondsmen comprised of over 5,000 bondsmen nationwide. Jerry Watson is an attorney from Dallas, Tex., and Los Angeles, Calif. For the past 12 years he has represented insurance companies in the business of serving as corporate sureties on bail bonds. The subcommittee is very pleased to welcome an individual with a great deal of personal experience in handling the legal implications of bail bonds. Mr. Watson? STATEMENT OF JERRY WATSON, ESQ., PROFESSIONAL BONDSMEN OF THE UNITED STATES Mr. WATSON. Thank you, Mr. Rader. On behalf of my clients, I want to express to the committee my appreciation for being asked to come and appear as a witness. I know that you are only hearing three witnesses today. The fact that I was selected as one of them is indeed a rare privilege, and I appreciate it. I was very interested in Mr. Jeffrey Harris' remarks concerning maintaining money bail as a part of the system on Federal cases. I am not really sure that I can state my position as well as he has already done it for me. Perhaps if my clients had known ahead of time what he was going to say, I might not have been here. It is nice to have this rare opportunity to be on the same side with the Government on a bail bond issue. I hope that the many years that I have spent representing insurance companies who write bail across the country will enable me to offer some information that perhaps will be of some help to the subcommittee. I will be talking mostly about what I consider to be the practical effects that would be produced if S. 1554 were enacted. I am more familiar with what those effects would be on the street and in the county courthouses and in the Federal courts around the country. In the interest of time, if you will indulge me, I am going to read my statement. Taking, therefore, the pragmatic and empirical viewpoint as opposed to the academic or purely philosophical, my address is going to be very brief and to the point. I think everybody interested in this bill can certainly agree that the supreme test of any program is just very simply whether or not it will work. I submit that there is one portion of the bill that is very highly unworkable, and it is mainly to that portion of the bill that I want to make my address. S. 1554 intends to reduce danger to the community. It assumes the falsehood that elimination of surety bonds will help achieve that end. The truth is that disallowing surety bonds is the very most certain way to defeat the high purpose of the bill and its sponsors. This is true for several reasons. Before a surety agent-who has been appointed by an insurance company and who has been duly licensed by some State authority-before that surety agent writes a bond in favor of the U.S. Government, he obtains exhaustive infor mation on the accused, on his relatives and those persons close to him. If the accused is a transient or if he is unemployed, the agent will generally not even write the bond. He secures the bond by having something of value pledged as security, and he will go to third persons and have them execute agreements of indemnity to hold him harmless in the event there is a skip on the bond. The agent will run very tight control on the accused. He will insist, for example, among other things, that the accused check in with him at least on a weekly basis, on the same day of each week and the same time each day. He keeps check-in cards on this man. If the man ever fails to check in, he will go immediately with a recovery agent, find the man, bring him back to the court, file an affidavit to go off the bond, and seek the granting of a motion to be relieved as surety on the bond. He full well tells the accused this before he ever takes him out of jail. He advises him that if he does not meet the conditions upon which he is taken out of jail by the bondsman, that he is going to go back into jail. Therefore, he monitors the case of the accused and he insists that the accused at all times be represented by counsel, and he works closely with the counsel for the accused. He notifies the accused of all of his court dates and he takes steps to assure that all court appearances are made. If despite all of this the accused does not appear as directed, the surety agent goes to great lengths and pays all expenses necessary to retrieve the accused and arrange for his surrender to proper authorities. The surety agent knows full well that all of these steps are necessary to prevent his having to pay to the United States the full amount of the bond, should it go forfeit. The incentive for diligence is therefore quite sufficient. It is, therefore, also highly unlikely that a person released on a surety bond will not appear as instructed. If he does not so appear, it is even more unlikely that he will not be recaptured to ultimately stand trial. I was just handed this morning an interesting copy of an article. In Florida they have recently had a legislative criminal justice committee hearing to determine whether or not money bail should be done away with or surety bonds should be eliminated from their system. One of the persons appearing to give testimony to that committee was a Judge Harry Lee Coe, and the article says, "Judge Coe warned that unless a 'huge bureaucracy' replaced the role of the bondsman, the criminal justice system would break down." He said that the bondsmen are ingenious in finding defendants and getting them to court, and that is what we are after. He says further that the bondsman does play a vital role in getting them there. Other judges gave similar testimony to that committee. The alternatives to surety bonds as proposed by S. 1554 are basically threefold. Mr. Harris has laid them out very well for you already, so I will just mention them very, very briefly. The first thing the judicial officer-be he magistrate or Federal district court judge-can do is, he can release the accused on his own personal recognizance. If the man, in terms of character and background and community standing, qualifies for such release based on his promise to reappear, who can argue with that? We certainly have no qualms, none of my clients do, with that position. Second, the judicial officer has the alternative of temporarily or permanently detaining the man. Mr. Harris has also spoken well to the subject of whether or not that meets eighth amendment tests and whether or not it is constitutional. Under United States v. Edwards there seems to be some precedent in that area. I think it is an interesting situation, and I know that the Supreme Court in dicta in several cases has gone both ways on the issue. I know that there are cases where they have indicated in dicta that Congress does not have the power to set a class of persons who shall not be bailable in noncapital cases, and then dicta in other cases seems to indicate that they can. I think it will certainly be tried by the Supreme Court some day, and it will be interesting. Concerning my clients' position on that, and I represent a number of insurance companies, I have polled my clients and I have asked them, "How do you feel about this?" If the judge can permanently detain pending trial someone whom he feels is going to be a danger to the community, it is going to cost my clients a great deal of money because if bonds were set in these cases, the judge would normally set a large bond due to the character of the defendant. Without exception, my clients have been delighted with this provision of the bill. We all hope that this part of the bill will remain in the bill and that it will in fact be attempted, and that judges will in fact be able to consider not only whether or not the accused will reappear as directed but whether or not he might harm persons in the community. If the judge does consider that he would be harmful to the community, then the judge will not set bail and he will detain the person pending trial. We sincerely hope that this is the case. The third thing that the judge can do or the judicial officer can do-and this is the one with which I have some serious misgivings he can release the prisoner "on conditions." This provision is the bill's true alternative to surety bonds. It provides that if a person cannot qualify for release on his own personal recognizance but at the same time is not so apparently incorrigible as to warrant his being permanently detained, then that person may be released "on conditions." The conditions are numerous, and many of them are not really unlike the controls imposed by a surety agent who secures the release of the accused on a surety bond. Now I have made a flat statement here, and I have to read it, and yet I want to qualify it just a bit. I have made this statement. I have said: "This program will not work. It has been tried over and over. In most cases it has failed utterly." Conditional release programs have some very poor statistics. In California a couple of years ago the State legislature passed Assembly bill No. 2. The purpose of A.B. 2 was to do away with surety bail on all misdemeanor cases. Every misdemeanor defendant in California is released "on conditions." OK? Sixty-six percent of those people never showed up for court. There is nobody to go get them. In Houston, Tex., the effects of their pretrial release program have been chaotic. Few programs of this nature with which I am familiar anywhere in the country have good statistics and good records. I do want to say this in fairness to the next witness: I have been told since I have been in the Capital that the Washington, D.C., pretrial release agency program is very efficiently administered, and that the gentleman who is in charge of it is a very capable and able administrator, and that the program is much needed here, and that the program works well. I do not have any data on the program as far as skip-tracing. I do not have any data on the program as far as how many of the defendants on their pretrial release bonds do not show up for trial. In fairness, I wanted to mention that. In Dallas, Tex., we were told that 1.3 percent of all those persons released on pretrial release bonds or conditional release bonds in Dallas, Tex., only 1.3 percent failed to make their court appearances. Those statistics were just too good, and so some of my clients paid persons to go to the court files themselves and check the records to get the true stats. It turned out to be over 60 percent who do not show up for trial. This needs to be compared with the number of persons who are released on surety bonds who do not come back as they are directed and stand trial. That statistic is only 2 percent. Only 2 percent do not show up, and of those 2 percent, 50 percent are subsequently recovered and brought to trial. Therefore, you are basically looking at a 1 percent no trial stat on persons released on a surety bond as opposed to over 50 percent of those who are released on conditional release bonds. Such a program inevitably seems to produce administrative nightmares. When persons on a pretrial release bond do not appear for trial, who goes after them? Most of the time, nobody does. Hundreds of thousands of warrants already go unserved in our country for lack of budget and personnel. Any marshal or sheriff will verify this. When a conditional release bond is written and then forfeited, who pays? Nobody pays. I think the interesting question is, who will be responsible to assure that all of these conditions imposed upon the accused are met? If we are going to allow the judicial officer to let this man out on any of these 16 conditions, and the bill provides that he can put other conditions in if he desires, who is going to see that those conditions are kept? I think this can best be answered from the words in a statement of the Honorable James C. Anders, solicitor of the Fifth Judicial Circuit, who has already appeared before you in favor of S. 1554. He said, and I quote, *** the administrative and supervisory problems encountered when attempts are made to insure compliance with such conditions are nearly insurmountable." 66* Therefore, not wanting to be facetious, I do want to say that there is one group of persons whom I believe will find great room for rejoicing in this bill, and that is the members of the criminal community, because those people know that if they can secure one of these conditional release bonds they do not have to go to court, and if they do not go to court they know that nobody is coming |