"The Primary purpose of the bond is not to respond in money, but to insure the presence of the accused before the court as required by his recognizance". Howel vs. Schiele, 85 Opp. 356, 4000 ps 234 54 OL Abs 471, 88NĚ and 215 Attd 153 OS 235, 41 O Ops 249, 91 NE and 5.

I maintain that the defendant has no more rights before courts of law than do sureties. Sureties must give evidence to the Superintendent of Insurance, of their ability to pay forfeitures, should such forfeitures be levied against them. Either the defendant must give evidence of his capacity to secure the remaining 90 percent of his bond; pay the full amont of the bond in cash or the amount of bail should not be stated as a specified amount" and treated by the courts as a lesser amount. The Courts should be required to cease and desist deluding the public into believing they are doing something that they are actually not doing.

What is wrong with the bail system other than what I have said about the administration of the "10 percent Rule", really nothing. The problems that are being experienced with the bail system stem from 100 percent lack of responsibility and negligence by official charged by Ohio Statute with its administration, the clerk of court. It is his responsibility to qualify the surety. By the same authority, he can disqualify the surety if he fails to perform his agreement by not paying his forfeiture when they have been levied against him by the court. Thus he can suspend the surety's operations in his court, and by so doing, thus suspend the operations of all Bonding Agents for that surety. Because the surety's agents can only do what the surety can do for himself. This then will eliminate "Judge Shopping". A judge by his own action cannot lift the suspension, because he did not impose it, nor did he have authority to do so. The clerk of court can lift the suspension of the surety, which in turn serves to requalify all his agents. The surety can bring an action at court against the clerk of court to have his rights and privileges restored. In this case, the trial judge would have the power to lift the suspension at his discretion. Continuances, in criminal cases are covered by Section 2937.21 Ohio Revised Code. I'm sure that a clear representation of court policy, in court where there is more than one judge, would eliminate "Judge Shopping" for purposes of continuing suits in forfeiture beyond what is reasonable. Judges should not usurp the authority of the clerk of court by taking over the administration of the bonding system as his personal private domain. These matters have to come before him in the legal process of the law. Should matters come to litigation, he cannot serve as accuser and Judge in his own court. He who has forfeited is the defendant-the clerk of court, the plaintiff for the state-the prosecutor prosecutes the case before the Judge who presides over the court. Each has his function. Try it. It's the law. The mess will be cleared up over night, and you don't even have to thank me.

Any public official or his employees against whom allegations of supplementing his income, by taking payments in exchange for using his position, office, or employment in public trust to grant special favors, or to commit wrongful acts, should be immediately dismissed or whatever action as may be necessary should be taken. The prosecutor knows how this should be done. If he won't do it, then get someone who will. Just follow the instructions in the law.

The giving of small tokens of consideration in appreciation of cooperation between peoples who work together to aid each other in getting their tasks accomplished, particularly during the winter holiday seasons, is in the American tradition and typifies the festive spirit among us all. The giving of a bottle of "booze" to those who like it, a tie tack, box of candy, a fruit cake, etc., does not, in my opinion carry with it the connotation of reciprocity by the granting of special favors on the part of the recipient. I see not justification for public ridicule of those who participate in the practice.

Anyone who permits another to sign his name assumes the responsibility for whatever the signature is signed to. Personally I follow My Dad's advice. He told me I had a couple of things that I should be very careful when I put. One of them was my name. I'm the only person I permit to sign it. The Plain Dealer tried to make a public issue out of what appeared to be a routine practice. Shame on you.

In brief, everything I have told you is covered by the law. Defendants have the right to bail and they have a right to have others make it for them. Qualified Sureties have a right to post bail bonds. Bonding agents are the agents of sureties, their principals. The Superintendent of Insurance prequalifies the sureties. The clerk of court can be held liable if he is negligent. The clerk of court is responsible to qualify sureties in his court; he can also suspend those whom he qualifies. The clerk of court has recourse at law to all its processes in his efforts to collect his forfeitures. Sureties have the right to surrender their bail. Sureties have the right to pursue after, apprehend, arrest their principals in any state in the United States. Sureties may return principals across state lines without reverting to extradition. The con

tract between the defendant and his bail is a private one between them and of no concern to the court. Sureties may use all reasonable force necessary to return their principal. Sureties may act for themselves or have agents to act for them. All these things are provided for under Federal Law. Sureties may defend themselves in court through counsel or for themselves. Sureties have the same rights before the courts as any other person in the world. Everything pertaining to the Bail System with the exception of the "10 percent Rule" is covered by statute in the Revised Code of the State of Ohio.

The Bail System of Courts in the city of Cleveland can be operated just as efficiently, and cleanly as it is in any other court in the State of Ohio. All that is necessary for them to do is follow the instructions in the Law. No reform is necessary. As for the Cleveland Plain Dealer, there is no necessity for you to assail the Superintendent of Insurance or the legislature to impose new laws and restrictions on the legitimate activities of people who are conducting their business in a legitimate

manner.

In summary let me say that while I will concede that in isolated cases, a bondsman may abuse his friendship with an elected official, I won't deny that in isolated case such quid pro quo situation might exist. It is the exception rather than the rule. I personally have never been so involved nor would I know how to go about initiating such an arrangement. I've been hit on a time or two by minor officials, but I have always acted as though they were joking, or else as though I didn't understand their meanings. I further admit that not all bonding agents wear their collars backwards nor belong to elite country clubs or jet sets-occasionally you may find one who has a past that he wished we and everyone else could forget. The fact that these very few people exist in our industry, as they do in all industries and businesses, gives the Plain Dealer no right to indict the entire industry. That members of a Cleveland bonding agents family have been accused of, indicted for, or convicted of unlawful acts is not justification for the Cleveland Plain Dealer to attempt to have the reading public believe that all people in the bonding industry are also guilty of like offenses. Yet this you have done, without having full knowledge of how the bail system is set up to function, who is responsible to see that it does so function, according to law, and without full knowledge of how the system works in courts outside of metropolitan Cleveland. You have deliberately, willfully, and maliciously, through the publications of the articles by your equally uninformed reporters, lead the reading public to believe the entire fault for the problems of the bail system are heaped upon the heads of all bonding agents. You have made further mischief by advocating in the pitiful, asinine, bleating editorial in the Sunday, August 10th edition, that the City Council of Cleveland join with you in furthur chastisement of bonding agents. You advocate the revokation and the denial of the defendants constitutional rights to "either make his bail or have some one do it for him", by having the courts declare it "unlawful" for a bonding agent to assist the defendant make a "10 percent bond", which is not in itself a law, but a rule that is being illegally administered.

A Corporate Surety is licensed by the Ohio State Department of Insurance. The Bonding Agent is an Insurance Agent licensed by the State of Ohio through the Corporate Surety for whom by he is legally designated their agent. This is private contract and of no concern to the City of Cleveland.

You demand his fees be regulated and a full disclosure of all his costs. Fine. But when you do, be damn sure you make the same requirement of each and every business in the City of Cleveland. Doctors, lawyers, retail and wholesale merchants, all other types of insurance agents, real estate firms, owners, and publishers or newspapers, etc. Otherwise, you are talking about Class Legislation affecting less than 100th of 1 percent of the business people in Cleveland. You furthur advocate that Bonding Agents be prohibited from the Justice Center. That is a public building. The Justice Center is the heart of their business. They must examine court records affecting their business. Bonds must be posted at the Justice Center with the Clerk of Courts. Their clients are held at the Justice Center. The Constitution gives the defendant the right to talk to his bondsman to arrange his bail. I note you make no mention of barring attorneys with regards to court records and clients. Try getting attorneys barred from the Justice Center, Mr. Dogodder. Everyone who has business in a Public Building should have sense enough to deport themselves with propriety and in accordance with the accepted rules of behavior in a civilized society. An individual who doesn't behave himself should be called an account. It is not recommended that everyone, gathered there for a like purpose, should be barred from access to the building.

Judge Frederick Coleman can verify to you that during our years of military serv ice together, that I never critize without recommending a better way. To do so in

this instance would please me in the same position as I find you-an untenautable? One. So here goes.

1. The bail system needs no reform. It only needs to be properly administered in accordance with the law. The law is there to cover every situation. Research it and then follow it. Don't read anything into it, take from it, or add to it. If you do, that's when you get into trouble.

2. Let those judges who have assumed personal and absolute control over "bondsmen" and have intimidated and usurped the authority and powers of the Clerk of Court unto themselves, return that authority and power to the Clerk of Court. If the judge adjudicated a forfeiture against a surety or against an individual defendant, it is the duty of the Clerk of Court to supervise its collection. The judge cannot bring the suit for foreclosure or collection. He cannot be the accuser and the judge at the same time in his own court. If the Clerk of Court suspends the privilege of the surety to post bonds in his courts for failure to pay a forfeiture, that serves to suspend all of the surety's agents. Since the Clerk of Court is the one authorized to invoke the suspension, not the judge, then the suspension can only be lifted by him. It is an administrative matter and not a judicial matter, unless it is come before the court in the form of a suit filed by the suspended surety or the Clerk of Court. This in accordance with the law and will eliminate the possibility of "judge shopping" as the Plain Dealer puts it. Sounds simple and it is simple.

3. The 10 percent Rule. All courts should either:

a. Eliminate the use of the 10 percent Rule or take the courts out of the commercial bonding business, or

b. Return the entire deposit to the accused or the depositor upon satisfactory performance of the purpose for which the bond was posted, and

c. Do not deny the defendant his constitutional right to make the cash deposit himself or have someone make it for him. (Note: the word someone is not be qualified by any exceptions.)

4. If a "10 percent bond" is taken, then the Rule provides that the "judge or magistrate shall set a bond". If the cash 10 percent deposit is made, then the remaining 90 percent of the bond amount so fixed, should be collateralized by such additional signatures, or by the assignment of such assets of the defendants, or of others desiring to join with him in making the bond, as to satisfy the clerk of court that in the event of forfeiture of his bail by the defendant, that the collateral thus offered is sufficient to satisfy the demands of the remaining 90 percent and that it can be reduced to judgment and levied upon to satisfaction of the State of Ohio. (Some courts merely require the defendant to sign unsecured bond for the additional 90 percent. Other courts require no more evidence of debt than the 10 percent deposit.) While there have been forfeitures of this class of bail bonds, I know of no instance where the courts have made any effort to collect the balance of the forefeiture. This has resulted in the loss of thousands of dollars to the State of Ohio. This is the baliwick of the State Auditor.

5. The Constitution forbids the use of bonds for punishment. They also prohibit the imposition of restrictions on bonds that make it impossible for the defendant to make the bond. Such impositions as $1,000.00 cash only, $2,500.00 cash only, $5,000.00 cash only, $10,000.00 or $25,000.00 cash only, are excessive and serve to deny the defendant his right to bail, and to punish him by keeping him in jail. The Constitution guarantees the defendant his right to bail and his right to have another make his bail for him if he cannot do it himself. If the court customarily is satisfied with the performance of the surety, and the surety is willing to post the bond, and the cash only restriction denies the surety the right to make the bail, then the defendants constitutional rights are being violated and he is being unlawfully detained. I suggest this practice be discontinued, and these matters discussed at Judges regular meeting. Reasonable bail should be set.

6. Whether the courts admit it or not, Bonding Agents, with clients out on bail, are ex-officio-officers of the court. Rather than treating them with contempt, try treating them as fellow workers that are performing a service to the court, to their communities, and to their clients. Bonding Agents can be of valuable help to the court and I'm not talking about unlawful activities. We have enough trouble trying to make a living as it is. The fact that Cleveland is in a mess is not the fault of Bonding Agents outside the City of Cleveland. Nor can you classify all the other courts in the State of Ohio as being in the same mess as Cleveland courts, and therefore, take it upon yourselves to demand that they come under more restrictions and regulations.

To clean up the mess, all that is really necessary for you to do is to show what I have written to your court officials. They are lawyers. I am not. I don't expect them to agree with everything I have said nor with my analysis completley. Nevertheless,

they cannot dispute the law nor the fact that it exists. Neither can they deny that what they are doing now isn't working. Something is wrong. Legitimate Bonding Agents agree with me. Equality before the law is the motto of the courts. Do what the law says, not what some minor official thinks is "the way it should be". Try it. It will work!

Let me tell you this one little parable apropos to the Plain Dealer and Court officials handling of this matter. When I was a young boy, I worked for a farmer who was possessed of a very violent temper and was a very unreasonable man. He was always hunting someone or something, to blame and punish for his misfortunes. One summer day he was mowing the orchard. I was picking up dead branches so they would not foul the cutter bar. As he passed under a tree, and ducked to avoid a low hanging branch, he didn't quite make it and his straw hat was knocked off. He stopped his team, took the buggy whip from its socket, walked back, jumped on his straw hat and flailed hell out of it with the buggy whip.

This is akin to what the Cleveland Plain Dealer has done to Bonding Agents throughout Ohio who have had nothing to do with the alleged mess of the Cleveland Courts Bail System.

I have lectured before civic groups, private organizations, and college campuses about bail bonding. It is a facet of the Justice System that is much talked about and little understood. These agents can and will help you educate the public concerning the system and how it works. They will help your community in many other ways also. All that is necessary is to treat them like the businessmen they are, and point out to them what you would like to see accomplished and ask them to help. Don't be surprised when they accept. As to the Plain Dealer, if you people want to crucify somebody, or find it necessary to resort to sensationalistic type journalistic efforts, make sure you have all your facts marshalled. Inuendos, insinuations, and wholesale indictments of whole group of people for the alleged wrongs of a very few, constitute slander and defamation of character of those who have done no wrong. Such actions, on your part, could result in a more positive and exciting reaction than the passive rebuttal, to your attack, which I have submitted.

AMERICAN BAR ASSOCIATION, Washington, D.C., October 29, 1981.

Hon. JEFFREY HARRIS,

Deputy Associate Attorney General,

U.S. Department of Justice, Washington, D.C.

DEAR MR. HARRIS: I read with great interest your October 21, 1981 statement concerning bail reform on behalf of the United States Department of Justice before the Senate Judiciary Committee's Subcommittee on The Constitution.

Because bail and fair and effective systems for the administration thereof are dealt with at length in Chapter 10 (Pretrial Release) of the ABA Standards for Criminal Justice, this is a subject of vital interest to the Association.

Indeed, official ABA representatives have spent a good deal of time in the recent past testifying before the Congress on a variety of bail reform bills. In part, our recent official testimony touched upon ABA policies regarding the use of monetary conditions and the abolition of compensated sureties.

On page 29 at footnote 23 of your testimony, you indicate “We are also aware of the suggestion that surety bond be abolished, as has been recommended by, among others, the American Bar Association in Standard 10-1.3(c) of the Standards on Pretrial Release." The American Bar Association does not recommend the abolition of surety bond. It recommends the abolition of compensated sureties. This matter is touched upon in passing at Standard 10-1.3(c) and in greater depth at Standard 105.5 (Compensated sureties). Finally, Standard 10-5.4(d)(iii) makes clear that under certain circumstances uncompensated sureties may be utilized.

While your reference to the ABA policy at page 29 of your testimony was perhaps minor I did wish to clarify the official policy of the American Bar Association as enunciated in our Second Edition Standards. Because the subjects of monetary conditions, surety bond and compensated sureties were addressed in the Association's testimony before the Subcommittee on The Constitution, a copy of this letter has been addressed to Senator Orrin Hatch and directed to the attention of Mr. Randall Rader, Counsel to the Subcommittee.

Sincerely,

RICHARD P. LYNCH, Director.

REDUCING CRIME AND DETENTION THROUGH PRETRIAL SERVICES

(By Senator Joseph R. Biden, Jr.)

Violent crime is one of the most serious problems facing America today. Thirty percent of the nation's households were touched by crime at least once in 1980. At least 6 percent of all households were touched at least once by violent crime-rape, robbery, or assault. Americans are not insulated from crime by race or by where they choose to live-30 percent of white households and 32 percent of black households were victimized. Crime touched 34 percent of urban households, 32 percent of suburban households, and 23 percent of rural households.1

There are many causes of violent crime-drugs and social, economic, and educational inequality are among the most important. In the past, the federal government has responded to violent crime with slogans and rhetoric or blindly throwing money at perceived causes. The failure of those efforts has taught us that we must approach crime in a more realistic and practical way. At the federal level, we must calmly assess what is needed and the specific impact of programs and reforms on the incidence of crime. We must also balance the cost of each proposal against its likelihood of success.

An excellent example of responsible federal action to reduce violent crime is the response to the problem of crimes committed by persons released on bail. The problem has been studied carefully, and a proposed solution-pretrial services-has been tried, tested, and found to reduce crime on bail. Now Congress is proposing that the demonstrated success of pretrial services merits its expansion to all federal districts. Crimes committed by persons released on bail have been the focus of intensive study on the federal level since 1969, when then-Attorney General John Mitchell told the House Judiciary Committee that crime committed by persons free on bail was a "major factor in the rising crime rate." Following extensive hearings, thenSenator Sam Ervin (D-N.C.) identified two sources of the problem.

First, the longer the period of time before trial, the more frequent and serious a second crime was likely to be. His proposed solution became law in Title I of the Speedy Trial Act of 19742 which sets a schedule of time limits in the which the federal courts must dispose of criminals cases.

Second, Senator Ervin found that Congress failed to provide judges with the information and assistance essential to carry out the purposes of the Bail Reform Act of 1966. A Senate report summarized the problem:

"[I]t is common knowledge that many federal judges are reluctant to release defendants pursuant to the act and all too often when they do, defendants either commit subsequent crimes or become fugitives. This situation exists because district courts do not have personnel to conduct interviews of arrested defendants so that judges can make informed decisions as to whether to release defendants. Furthermore, outside the District of Columbia, there is no agency charged with supervising bail conditions for defendants released prior to trial. Therefore, even if a defendant is released on his own recognizance prior to trial on a condition set by the judge, for example that the defendant refrain from associating with certain persons or that he not use narcotic drugs, there is no agency charged with assuring compliance with the judge's order." 4

Senator Ervin concluded that federal judges should be provided with the information necessary to make an informed bail decision and that individuals released on bail should be supervised. Congress implemented those proposals in Title II of the Speedy Trial Act of 1974.5 Title II of the Speedy Trial Act of 1974 established demonstration pretrial services agencies in 10 representative federal judicial districts. The 10 districts were chosen by the Chief Justice upon consultation with the Attorney General on the basis of the number of criminal cases in the district, the percentage of defendants detained before trial, the incidence of crimes charged to persons released prior to trial, and the resources available. The primary functions of the agencies are to:

(1) collect, verify, and report promptly to the judicial officer all information pertaining to the pretrial release of persons charged with an offense and recommend appropriate release conditions;

(2) review and modify the reports and recommendations;

The Prevalence of Crime. Bureau of Justice Statistics, U.S. Department of Justice, Washington, D.C. (April 7, 1981).

2 Public Law 93-619, 88 Stat. 2076, 18 U.S.C. 3152 et seq.

3 Bail Reform Act of 196, Public Law 89-465, 80 Stat. 216, 18 U.S.C. 3146 et seq.

• Senate Report No. 97-77, 97th Cong., 1st sess. (1981) at 2.

518 U.S.C. 3152-3156.

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