Inside Track: Provisions Allowing Bail Bondsmen Could Be On the Horizon:

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  • Provisions Allowing Bail Bondsmen Could Be On the Horizon

    Joe Forward

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    money and handcuffsMay 1, 2013 – Bounty hunters and bail bondsmen may be coming to Wisconsin soon, as the State Bar of Wisconsin has learned that provisions allowing commercial bail bondsmen to operate in Wisconsin could end up in the proposed state budget.

    Provisions for a “commercial bail bond program” were included in the previous state budget (2011-13), known as the “budget repair bill.” Gov. Scott Walker reportedly supported it, but vetoed the provisions noting that separate legislation should address it.

    On that cue, Republican lawmakers in 2012 pitched AB 567 to allow bail bond agents, agencies, and recovery agents (bounty hunters) to operate commercially in Wisconsin, an industry that was outlawed in 1979. That bill also failed when the legislative term expired.

    However, there are strong indications that bail bond provisions may once again appear in the proposed state budget, set for approval in June.

    The State Bar’s Criminal Law Section – which represents more than 500 prosecutors, judges, criminal defense lawyers, and legal academics – opposed AB 567 and oppose any new proposal to implement commercial bail bonding in this state.

    “A bail bond system in Wisconsin is a bad idea,” said Milwaukee Deputy District Attorney Lovell Johnson on behalf of the Criminal Law Section.

    Wisconsin Outlawed Bail Bond Programs

    Wisconsin is one of four states that prohibit commercial bail bonding and bounty hunting, along with Kentucky, Illinois, and Oregon. It does so by requiring a bail bond surety to be “natural person” who cannot be compensated for posting bond for bail.

    Joe Forward is the legal writer for the State Bar of Wisconsin. He can be reached by email at org jforward wisbar wisbar jforward org or by phone at (608) 250-6161.

    Other states allow bail bond companies or agents to post a criminal defendant’s bail. They do so by charging a nonrefundable fee, usually 10 percent of the bail amount. Thus, if a defendant’s bail is $10,000, the defendant will pay $1,000 to be released.

    Bail bondsmen may require a defendant to pledge security for higher bail amounts. In some cases, family or friends agree to indemnify the surety for bond forfeitures.

    If a defendant absconds, bondsmen hire “recovery agents” to capture them, since bond companies and insurers face losses if bail bonds are forfeited.

    In 1979, Wisconsin banned the commercial bail bond industry. At the time, there were concerns that private bail bond programs abrogated judicial decision-making, adversely affected public safety, and served as a catalyst for rampant corruption.

    In 1980, the Wisconsin Court of Appeals upheld the ban on commercial bail bonding, noting the presence of kickbacks, collusion, and corruption. “The effect of such a system is that the professional bondsmen hold the keys to the jail in their pockets,” wrote Judge Gordon Myse in Kahn v. McCormack, 99 Wis.2d 383, 299 N.W. 279.

    Renewed Interest May Breed Renewed Opposition 

    Last year’s bill would have allowed bail bond sureties to be compensated for posting bail if the surety was licensed and bail bonds were backed by authorized insurance companies. Bail bond agents would be required to satisfy education and training requirements.

    The American Bail Coalition and surety insurance companies voiced support for the bill, arguing that a private bail bond system would reduce jail costs, increase court appearances, and foster quicker adjudication in cases alleging serious crimes.

    But Milwaukee Deputy District Attorney Lovell Johnson, who speaks for the Criminal Law Section on this issue, said bail bond programs “breed corruption within the criminal justice system” and put jail release decisions in the hands of for-profit bondsmen.

    “It would be inconsistent with the evidence-based pretrial system presently being used in Milwaukee County Circuit Court, and other similar systems, which examine factors pertaining to each individual defendant in making a release decision,” he said.

    Johnson also said a private bail bond program would essentially tax minorities and low-income individuals who must pay a nonrefundable fee, even if the defendant is eventually found innocent. Such programs also hurt crime victims, Johnson says.

    “Under present law, if the defendant is found guilty, money posted by the defendant to the court for bond can be used to make restitution,” he said. “Money posted by a bail bondsman cannot be used to make victims whole.”

    Rep. Fred Kessler (D-Milwaukee), a former Milwaukee County Circuit Court judge who advocated for banning commercial bondsmen in 1979, opposed bringing it back.

    “Commercial bonding has had countless ties to corruption,” Kessler said in a statement to the Assembly committee that considered AB 567.

    Jeffrey Kremers, chief judge for the Milwaukee County Circuit Court, noted that all 48 judges on the Milwaukee bench opposed the return of commercial bail sureties.

    He noted that little or no attempt was made to solicit input, and questions remained, including whether sureties would be required to post 100 percent of the bail amount prior to release or simply “owe” the money in the event of default.

    “There is no valid reason for returning to a practice that was tossed aside 32 years ago,” Chief Judge Kremers told lawmakers in a statement opposing AB 567. “It was unseemly and fraught with peril for the integrity of our system.”

    John Storck, chief judge of the Wisconsin’s Sixth Judicial District, opposed a private bail bond program, stating that “whatever benefit would be derived by job creation is substantially outweighed by the negative impact on the criminal justice system.”