1. Best Options of Release in a Criminal Matter
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A history of the Bail Bond Industry
The argument in favor of a commercial bail system stems back as far as the 1600’s. In 1679 the English
Parliament passed the Habeas Corpus Act, among the other provisions, established that magistrates
would set and create terms for bail.
The 1689 English Bill of Rights set restrictions against excessive bail. This later inspired the Virginia
State Constitution and the Sixth and Eighth Amendments to the Constitution. In 1789, the Judiciary Act
was passed, which not only gave outline for Federal and District Courts, but provided that all “noncapital
offenses” were bailable. Bail for capital offenses were left to the discretion of the Judiciary.
Between 1789 and 1966, there was little change in United States bail law. It is between these years that
the privatization of bail bonds became a more viable option. This became relevant as a means to relieve
jail populations and ensure accountability of a defendant returning to court with little to no financial
burden on the State and Federal Governments.
In 1966, the United States Congress passed the Bail Reform Act, which allowed for the release of a
defendant with as little financial burden as possible. The commercial bail industry had grown to
encompass companies and even the requirements of financial institutions to back a commercial bail
entity. Regulations and law began to be developed by individual States to regulate commercial bail
bonds professionals. Ultimately, the commercial bail bonds system held to the same standard; provide
an inexpensive means of release and greater accountability with less financial burden on the public.
The 1984 Bail Reform Act was established and replaced the original 1966 Act. This new reform allowed
for the release of higher risk defendants; but also established bail hearings for all defendants facing
prosecution. This provided an even greater responsibility to the commercial bail industry and
encouraged greater relationship between bondsman, court and law enforcement.
The commercialization of the bail industry remained largely accepted in the United States and was
further regulated under Commerce and/or Insurance licensing and regulations. (Silverman, 2007)
(Devine, 1991)
What Is Commercial Bail Bonds
The commercial bail bond has been an established method of release since the United States was
founded. Commercial bail, though a controversial and often over glorified industry, was originally
established as a means to provide affordable release of a defendant while providing financial relief to
the public for housing and/or returning a defendant to custody.
The bond represents a promise to the courts that the physical body of the defendant will appear to
every court date, the location/whereabouts of the defendant for extradition purposes (when
applicable), or the full face value of the bond will be paid in full to the courts. This obligation and
promise to the courts maintain validity until the court case is concluded or the bond is satisfied by
discharge.

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If a defendant fails to appear to a court date, and the bond is forfeited, the bondsman will be given a
demand to either pay the full value of the bond to the courts, or return the defendant to custody. Upon
this failure to appear (FTA), the bondsman will contract a bail enforcement agent (also known as bounty
hunter), will begin investigative steps to discover the location of the defendant and/or secure the
apprehension (when applicable) of the defendant. Once the defendant is apprehended (when
applicable), the defendant will be surrendered to the County/State of which the bond was posted (when
applicable). If the defendant cannot be legally apprehended, or an issue of extradition is prevalent, a
motion to have the bail bond reinstated/revoked and discharged will be made with the court. When a
defendant is apprehended, a motion to have the bail bonds reinstated/revoked and discharged will be
made with the court. In extenuating circumstances such as; death, mental incompetency and/or custody
status, a motion can be filed with the court to vacate and discharge the bail bond. The bondsmen then
hold the co-signer, defendant and/or any other Indemnitor that participated in the procurement of the
bond responsible for any and all fees incurred for any and all actions as a result of risk or loss to the bail
company.
If the bondsman has established and can prove that the defendant under their charge is going to fail to
appear, or has been violating their terms of release, the bondsman will contract with a bail enforcement
entity to have the defendant returned to the judge whom issued and set the original bail for the
purposes of having bail revoked. It is in this circumstance that the bondsman and bail enforcement
entity will have to prove the validity of their claim and reason to revoke the bond and risk to public
safety; possibly in a hearing. In a hearing a judge will determine the validity of the information provided,
if the bail will be revoked, if new conditions or the same or higher bail set. If the information to support
revocation of the bail is found unsupported, the defendant will be rereleased on the original bond,
under the responsibility of the original bondsman. This process again is at no cost to the State and has
proven to maintain the highest level of success in securing a defendants reappearance and
accountability to the courts. (Tabarrok, 2004)
Support and Facts of Commercial Bail Bonds
As a consequence of misunderstanding, over glorification and greed regarding the bail bond industry as
a whole, there are many entities that have come to despise the private industry and actively seek to
take the process to a publicly run service. In the article “Facts Regarding The Commercial Bail Industry”,
published by Accredited Surety and Casualty Company, Inc. on October of 2012, Melanie Ledgerwood
identifies and alleges “Taxpayer-funded pretrial services programs continue their attack on the
commercial bail industry with an all out call to eliminate the industry. These entities are the: National
Association of Pretrial Services Agencies (NAPSA), Pretrial Justice Institute (PJI), Justice Policy Institute
(JPI) and the American Bar Association (ABA).” (Melanie Ledgerwood, 2012). Infringement of rights,
discrimination of wealth, regulatory violations by bondsmen/bail enforcement and criminal activity by
bondsmen/bail enforcement are just some of the many allegations that the bail industry has come
under scrutiny for and further identified by this article.
Of greatest fact, is that with the information provided by Melanie Ledgerwood in her “Facts Regarding
The Commercial Bail Industry” article, her statements that there are organizations attacking the bail
industry is not a new concept. In the 1978 law review by Dr. Virgil L. Williams of The University of
Alabama, titled “Nine Reasons To Go Slow On Bail Bond Reform”, Dr. Williams provides substantial

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information on the political atmosphere facing the bail industry at that time.
The arguments being made to support commercial bail bonds, as well as supporting the development of
a strong working relationship between court, bondsmen, bail enforcement and law enforcement is still
an effective argument over 30 years later. Dr. Williams further states on page 11”Personal recognizance
systems [pretrial release programs] are established to provide relief for suspects who cannot afford to
use commercial bail bond companies; however, once established, personal recognizance [pretrial
release programs] is available to persons who might otherwise have utilized the services of such
companies. The outcome of implementing such reform is destruction of a private industry with
government usurping the functions previously performed by private enterprise. The bail bond industry,
like other segments of the private sector of our economy, arose in response to a need for its
services.”(Dr. Virgil Williams, 1978). Services that ultimately relieve a significant financial burden to the
State.
Publicly run pretrial release programs have been implemented in States such as Wisconsin, Illinois,
Oregon and Kentucky; following the elimination of commercial bail bonds. The result in these States has
been a significant increase in FTA’s over the years as a result of defendants no longer facing a firm
accountability to return to court. The Bureau of Justice Statistics has clearly presented these findings,
and was best interpreted by Michael J. Whitlock, Executive Vice President for American Surety. In Mr.
Whitlock’s October 22nd, 2012 article “Crime Increases Nationally”, he describes in great detail how the
new Bureau of Justice Statistics data for the year of 2011 clearly shows that with more public
intervention, restrictions, reform, and further implementation of publicly operated pretrial release
programs, crime has been on a rise and the accountability of a defendant to return to court has
decreased. It is in this article that Michael Whitlock summarizes his professional belief “In my view the
alarming increase in violent crimes is due, in part, to the departure by many courts across the country
from guaranteeing the appearance in court of criminal defendants with a bail bond.” (Whitlock, 2012).
When a defendant is released on a pretrial release program, it is with a promise to reappear to court
and to be placed on a non-restrictive or restrictive supervision program. These restrictive programs have
included GPS monitoring, pretrial supervision/reporting, drug testing, house arrest, chemical
dependency treatment and various other options. At times, in these instances, the courts can order for a
defendant to pay 10% of what would normally have been the face value of the bail directly to the
courts/jail. If, for whatever reason, a defendant fails to appear or violates a term of release while
released on one of these programs, the defendant will have a warrant issued and that warrant will need
to be served by the law enforcement of the State/County at the expense of the public.
Often, a law enforcement agency will not have the resources to devote to investigating the whereabouts
of every defendant that has absconded on their pretrial release programs. This is especially relevant to
the defendants that have been charged with anything but a felony. Typically when a cash bail and/or
cash payment made to the court/jail is forfeited, it is disbursed to a general fund of the County/State.
Unfortunately, without the resources going into the locating and apprehension of these defendants,
they are free to continue to run in the public until they are found by law enforcement officers while in
the course of regular duty. This only further jeopardizes the safety of our communities, further harms
the perceptions of the Criminal Justice Systems that participate in these programs, and builds a greater
financial burden against the tax payer. (Tabarrok, 2004)

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Research For and Against Commercial Bail
The Justice Policy Institute and the Pretrial Justice Institute are the most significant and influential
organizations in support of the elimination of a commercial bail industry. Their arguments include
“distortion of judicial decision-making”, “significant costs to tax payers”, “financial influence of elected
officials via contributions”, and “discrimination of low income defendants”. (Justice Policy Institute (1),
2012) (Justice Policy Institute (2), 2012) (Jones, 2013)
Though the Justice Policy Institute and the Pretrial Justice Institute provides argument against the bail
industry, and urges for the elimination of the commercial bail bond industry, their information, in fact,
supports the commercial bail industry when looking at the information they provide, categorized
appropriately. The research conducted by the Justice Policy Institute focuses on failure to appear rates,
recommit crime rates (pretrial misconduct) and jail population sizes. They categorize a secured release
option as a defendant placing cash with an entity for the purpose of release; while unsecured is
categorized as a noncash option of release, for example: GPS monitoring or a promise to appear. In their
respective studies, the Justice Policy Institute fails to separate commercial bail and cash bail paid directly
to courts, which gives an inaccurate account for success of either program. (Justice Policy Institute (1),
2012) (Justice Policy Institute (2), 2012)
The Justice Policy Institute does an excellent job in identifying the current issues facing the commercial
bail industry at a national level, and does identify recommendations for reform that are universally
agreed upon by the commercial bail industry. These recommendations include transparency and full
statistical data reporting by all States as well as courts and pretrial service organizations working
together.
The research conducted by Michael R. Jones of the Pretrial Release Institute provides factual definitions
and established the differences between a secured bond through a bondsman and an unsecured bond
by posting cash options to the courts or release on a promise to appear. It is this study that shows there
is no immediate difference initially when it comes to public safety and secured versus unsecured bonds.
The summary of Mr. Jones’s work: “Unsecured Bonds: The As Effective And Most Efficient Pretrial
Release Options” indicates that when looking at public safety, secured and unsecured options of bail had
no legal impact on a defendants criminal behavior. (Jones, 2013)
Historically, when an unsecured release option is used there is still a higher failure to appear rate (30%)
than when a commercial bail secured option is used (18%). (Tabarrok, 2004) (Thomas H. Cohen, 1990-
2004) In the article “Reducing Courts’ Failure to Appear Rate: A Procedural Justice Approach” it is clearly
documented how through a series of controlled studies, a variation of commercial bail bondsmen
working with court administrators, probation officers and law enforcement professionals offered the
most effective means of securing a defendants return to court. The unique piece to this study is how the
bondsmen and courts establish reminders of court dates and various other methods of holding
defendants accountable.
Mary T Phillips, Ph.D. indicates in her report from the New York City Criminal Justice agency, Inc.,
that FTA’s substantially increase when unsecured cash bail or pretrial release programs are utilized for
defendants. Her research shows that in a city such as New York, FTA’s of defendants who post a bail
through the services of a bondsman are almost 40% less, and the average defendant that FTA’s on a

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bondsmen is returned to the custody of the court 90% of the time, and at no burden to the State. (Mary
T. Phillips, 2011)
The greatest argument for commercial bail being utilized is the reappearance rates of felony offenders.
From 1990-2004 and being published in 2007, the U.S. Department of Justice released a special report
outlining failure to appear rates, pretrial misconduct rates, the percentage of fugitives and rearrested
fugitives. The study showed that 19% of defendants released on a Surety Bond (commercial bail)
remained in fugitive status when FTA after 1 year. All other types of release averaged a 30-36% rate of
defendants remaining in fugitive status when FTA after 1 year. This makes the obvious argument that
commercial bail provides a greater accountability in securing the return of a defendant into custody
when FTA. The most attractive part to this study is that the option (commercial bail) that provides
greatest accountability is also at no cost to the public and supports the greatest overall safety to the
public. Taking this point further is to remember that if a defendant when FTA is not returned, the
commercial bail entity must pay the face value of the bond in most circumstances. (Thomas H. Cohen,
1990-2004)

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Recommendations
When looking at the factual information and the arguments from both sides, it is clear that commercial
bail is a better option when securing the release and return of a defendant. The commercial bail
industry, like any industry both public and private, has had unethical and unprofessional situations take
place. This has not been helped by the over glorification of the bail industry by television and movies.
It is recommended that:
1. Education be developed and made available and actively offered to all judicial, law practicing and law
enforcement professionals.
2. Educational Standards and Continuing Education be developed by the State and the Association and
be required concerning licensing of Bail Enforcement and Bail Bonds professionals.
3. That pretrial service organizations work with the courts in developing the safest and most effective
release and return of a defendant, while holding defendants accountable.
4. The State of Minnesota, or a third party be worked with, to track and report failure to appear rates of
defendants, pretrial misconduct and types of release methods used, with the purpose to identify Social,
Safety and Economic impact to the State.
5. Commercial Bail agents and Companies are held to a standard professional code of conduct,
enforceable by fine, civil and/or criminal penalty and adopted into current legislation. It is
recommended that the State of Minnesota and the Association work together in forming the code of
conduct, and further work together in its enforcement.
6. The State of Minnesota and its governing departments work with the Association to refine the current
Statutes, Rules and Laws governing commercial bail operations to specifically address and support a
more effective criminal justice system and private pretrial release operations.
7. Judiciary professionals refrain from offering or utilizing unsecured release options, unless extenuating
circumstances have occurred.
8. Bail Enforcement (“bounty hunters”) be governed and regulated under the Board Of Protective
Agents and Private Detectives in some capacity. This should be done by either being licensed
under current licensing offered or new licensing criteria is developed.

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Works Cited and Bibliography
Anonymous. (2002, June). Prison Populations. Corrections Compendium, 19-23.
Devine, F. (1991). Commercial Bail Bonding: A Comparison of Law Alternatives. ABC-CLIO.
Jones and Barlett. (n.d.). Correctional Counselors: Roles, Work Enviroments, Conflicts and Challenges.
Jones and Barlett. Retrieved from
http://www.jblearning.com/samples/0763741140/Correctional_Counseling_Chapter_1.pdf
Jones, M. R. (2013). Unsecured Bonds: The As Effective And Most Efficient Pretrial Release Option.
Pretrial Justice Institute, Washington, D.C.
Justice Policy Institute (1). (2012, September). Bail Fail: Why the U.S. should end the practice of using
money for bail. Washington, DC: Justice Policy Institute.
Justice Policy Institute (2). (2012, September). For Better or For Profit: How the bail bonding industry
stands in the way of fair and effective pretrial justice. Washington, DC: Justice Policy Institute.
Mary T. Phillips, P. (2011). Project Director and Deputy Director. New York City Criminal Justice Agency,
Inc., Reasearch Department. Jerome E. . Retrieved from
http://www.cjareports.org/reports/releasetype&fta.pdf
Melanie Ledgerwood, D. o. (2012, October). Facts Regarding The Commercial Bail Industry. Orlando,
Florida. Retrieved from https://www.accredited-inc.com/pdf/news/com-bail-facts.pdf
Shelden, R. G. (2010). M.A., Phd, Senior Research Fellow. San Francisco: Center on Juvenile and Criminal
Justice. Retrieved from http://www.cjcj.org/files/The_Prison_Industry.pdf
Silverman, J. (2007, Fabruary 05). How Bail Works. Retrieved from howstuffworks.com:
http://money.howstuffworks.com/bail
Tabarrok, E. H. (2004, April). Public Versus Private Law Enforcement: Evidence From Bail Jumping. The
Journal of Law & Economics.
Thomas H. Cohen, P. a. (1990-2004). Pretrial Release of Felony Defendants in State Courts. U.S.
Department of Justice; Office of Justice Programs.
Whitlock, M. J. (2012, October 22). MCBA Executive Vice President - American Surety. Crime Increases
Nationally, p. 1. Retrieved from
http://www.ascusi.com/blogentry.aspx?id=3867&category=Bail+Bond+Insurance