Bondsmen recently have been accepting lower-percentage fees on an increasing number of violent felonies.
The discount makes it clear that judges are not always determining what people have to pay to get out of jail, and the implications for defendants, victims and the system are far-reaching.
“That means the cash bond system itself is serving a danger to the community,” state District Judge Chris Morton said. “Any time there’s a for-profit aspect to criminal justice, that creates the opportunity for oppression and inconsistencies in justice.”
Bail in Harris County
Bail is the money a defendant must pay in order to get out of jail. A bond is posted on a defendant’s behalf, usually by a bail bond company, to secure his or her release. Such a surety bond is like a security deposit.
Bail is not intended as a punishment. It is rather a way of securing a defendant’s agreement to abide by certain conditions and return to court. The standard for bail in most jurisdictions — and other states — is that a bail agent requires 10 percent of the bail amount plus collateral to secure a defendant’s freedom. In Harris County, bail companies rarely pay in full and give the court an equivalent of a provisional IOU with the backing of insurance agencies, said County Court at Law No. 8 Judge Franklin Bynum.
If a defendant skips court, prosecutors can move to revoke or forfeit the defendant’s bond. Revocations trigger an arrest warrant and their return to court upon their capture. Forfeitures are a more tedious process that results in the court keeping the bail amount — but only after a judge agrees and prosecutors successfully sue to seize the money.
In Texas, the 10 percent figure is referenced in Texas Insurance Code, which states that payments above that amount could be subject to regulations. No minimum is required.
EXPLAINER: How bail and bond work in Harris County
Loose regulations set the stage for variations in how bail companies collect money, according to several professors who study bail. And changes in the market are usually the cause.
Profits diminished for bail companies after Harris County began adopting bail reform in 2017, requiring cash-free releases for most poor misdemeanor defendants. Bail licenses in Harris County have dropped by nearly two dozen since 2017, with about 80 permitted as of September to operate, records show.
One estimate from monitors tracking the implementation of bail reform indicated that bail bond earnings in Harris County went from around $3.5 million in 2015 to slightly over $500,000 in 2019.
The dwindling bail landscape caused agents to adapt or close up shop. Many padded their business with felony cases, some carrying higher bonds and more risk of defendants skipping court. Some bail agents are relying more on payment plans and are not asking for collateral — a house, car or other possession.
The Houston Chronicle reviewed hundreds of court records and found that bail bondsmen for years have been granting less than 10 percent rates on surety bonds. A sampling of data for the first six months of 2021 supported bondsmen, defense attorney and judges’ anecdotes that bail agents are more frequently charging lower fees, sometimes as small as 1 or 2 percent, at times on more violent crimes. Some of the defendants are then put on payment plans for the remainder of the money.
“We’re business people,” said Michael Kubosh, an at-large city councilman and former bondsman. “You collect what you can.”
While seemingly better for defendants, the lower fees are concerning to lawyers and jurists. Several judges worry that they no longer can count on defendants paying 10 percent for their pretrial release; others feel that even at lower rates, bail is still too much for some.
Authorities believe some defendants have committed more crime to pay bail for themselves and others, according to court records.
Jose Luis Perez — on bond for a prior offense — was charged in March with robbing a woman at gunpoint; he told officers he needed cash to pay for the bail, meaning he was likely on a payment plan, prosecutors said. He faced additional charges in federal court, and the state case was later dismissed.
Prosecutors say that the lower payments also minimize the pressure to return to court, because more money down means defendants would feel beholden to family members who put their livelihoods on the line to free them.
Advocates, meanwhile, do not believe any amount of cash bail keeps the public safe, and they feel bail discounts and payment plans show how many defendants — primarily poor people of color — remain on the hook with private enterprises after securing their freedom.
How discounted bail works
A magistrate set bail for Zacchaeus Gaston at $50,000 in February 2020 on a drug possession charge. The general assumption is that Gaston, his loved ones or another benefactor would pay 10 percent, or $5,000, to a bail agent to get him out of jail ahead of trial.
The payment, instead, was $2,300, a bondsman listed in an affidavit of surety to surrender principal — a unique form that allows a bail agent to cut ties with a defendant’s bond, usually after a new charge. In filing the form, bail agents ask deputies to take the defendant into custody, while they keep the defendant’s bail deposit and stop being responsible for the person in the eyes of the court.
The bondsman filed the document for Gaston after Houston police accused him of fatally shooting his ex-girlfriend, Layla Steele, and wounding their 1-year-old boy.
Records outlining surrendered bail agreements are public, and the Chronicle reviewed more than 700 documents through the Harris County District Clerk’s Office. This included filings made prior to misdemeanor bail reform, which resulted in the majority of defendants in low-level offenses not having to pay to get out of jail.
In those affidavits, the Chronicle found 141 cases of lower than 10 percent bonds for the first six months of 2021 — 31 of which were for violent felonies, according to court records. The number could be higher outside of the affidavit of surrender documents. The same span of time in 2013 produced at least 103 cases — 12 of which also were for violent crimes.
Some of those records reference the amounts left on payment plans. The extent of the payment plans and lower fees may never be known because bail companies are not obligated to enter their contracts into the public record.
Payment plans and lower fees are a point of contention for defense attorneys and advocates who oppose the bail industry. Those advocates worry that bail agents, who secure freedom for defendants deemed to be violent, operate without oversight and enable repeat offenders.
In most cases, the Texas Constitution guarantees a defendant’s right to bail, which allows for pretrial release from jail upon the payment or promise that a defendant will return to court.
If the defendant is charged with a new crime while out on bond, the judge or magistrate usually sets bond for the new case, as the defendant still has right to bond in most cases. If the defendant is charged with yet another crime while out — an increasing occurrence amid a crisis-level backlog in the courts, which keeps cases languishing — the jurists come under fire for not keeping the person locked up.
CHRONICLE INVESTIGATION: As killings tied to defendants out on bond rise in Houston, data reveals courts crisis
Bail can be denied only after prosecutors file a motion and request a hearing, said state District Judge Kelli Johnson, who presides over the Harris County criminal district courts.
“What is most frustrating as a judge is to go through the whole process of a meaningful bail hearing and set an appropriate bond, only to have a bondsman come up behind you and accept a nominal amount of the bond and no collateral,” Johnson said.
Bondsmen are accountable to the court for the 100 percent surety, however, and that shouldn’t be overlooked, said Jeffrey J. Clayton, executive director and policy director of the American Bail Coalition. Lowering bail fees is completely legal in most states (including Texas) in order to remain competitive — but legislatures have the ability to enforce a floor amount to those payments if needed.
Glenn Strickland, of A-1 Bail Bonding and the head of the Harris County Bail Bond Board — which approves licenses — disapproves of fees 4 percent or lower, adding that he has heard of their prevalence but not accepted them himself.
“Everyone charges what they think is appropriate,” Strickland said.
Payment plans, he said, stemmed from an increasing number of indigent defendants.
Strickland and others defended their businesses as a service to defendants, their families and taxpayers. Most bail agents remind defendants to show up for court.
The bail agents who spoke to the Chronicle were not among those who routinely offered lower than 10 percent fees, records show. The bail agents who appeared in court records to take lower fees most frequently declined to comment.
The issue of public safety
Bail bonds agents in Harris County opposed misdemeanor bail reform, filing to intervene in federal court. Although their efforts were futile, they heralded the idea that cash bond keeps the public safe by motivataing defendants to return to court since their money or their family’s money is on the line.
Some worry what that could mean when bail fees are lowered to the point of apparent ineffectiveness, but several defense attorneys and advocates said they feel the trend proves the opposite — that bail agents aren’t considering public safety when they offer discounts to defendants with a history of violence.
Experts who study bail, as well as defense attorneys, added that research usually does not back the idea that bail is what keeps people coming back to court.
“The big bail industry has little accountability for bargaining away public safety,” said Sarah Wood, general counsel for the Harris County Public Defender’s Office. “Our money bail system is one big loophole where people are allowed to wheel and deal their way around court orders and then try to blame judges and reformers when things go wrong.”
Morton, the state district judge, does not support the cash bail system but understands that is what Texas currently uses and what he is forced to work with. When judges have little or no ability to deny bail for a violent defendant, they set a higher bail amount knowing the suspect is unlikely to make bond. Discounts undercut that, he said.
On the other hand, advocates who push for the right to bail on behalf of poor defendants concede that a discount is technically better than a 10 percent rate. But they emphasized that all bail is oppressive.
“The alternative to unconstitutional pretrial detention is not saddling people and their families with huge amounts of debt and aggressive collection practices,” said Elizabeth Rossi, senior attorney at Civil Rights Corps, which successfully sued Harris County over misdemeanor bail and has sued over felony bail practices. “Both of those scenarios create immense harm, especially on poorer communities and Black and brown families.”
Lack of transparency, regulation
The bail bond industry is thought to be a $2 billion enterprise in the U.S., one of only two countries — the Philippines is the other — that use private bail companies for a pretrial release system.
Transparency is one of the biggest issues facing the criminal justice system related to bail, according to professors who study the bail system.
“They are a private company, but they are part of this public system in that in a sense they literally hold the keys to the jail for many defendants,” said Joshua Page, an associate professor of sociology at the University of Minnesota, who also did research working as a bail agent in a large urban county. “When we don’t know how they operate, it’s difficult to hold them accountable.”
The Chronicle was not able to get a full accounting of how often defendants paid less than 10 percent to get out of jail or learn details of payment plans because bail companies are not obligated to enter their contracts into the public record. Only a sample of data was available through affidavits of surety to surrender principal — forms that allow a bail agent to cut ties with a defendant’s bond, usually after a new charge.
Estimated bail bond profits for misdemeanor cases dwindled between 2015 and 2019 in Harris County, according to a report from a group of independent monitors federally appointed to oversee the bail reform settlement.
On HoustonChronicle.com: DA Kim Ogg challenges monitors over bail reform reports
Assuming defendants paid 10 percent of their bail amounts, bail agents took in $3.6 million in cash in 2015, the report continued. By 2019, that intake was an estimated $506,000.
That loss in income makes it easy to understand why bondsmen have lowered their rates, Page said. Basic rules of supply-and-demand dictate that fewer “clients” means lower costs are needed for “sellers” to stay competitive. Bail agents stand a chance to make more money — despite the lower fees — as long as business increases. And violent felonies in Harris County have been on the rise.
“Our jail is full right now — and it has been for a while,” Sheriff Ed Gonzalez said. More than 9,200 people were being jailed as of Wednesday, records show.
The profile of people inside the Harris County Jail is shifting, he said, with more serious offenders being booked. However, plenty of defendants with bail set at $10,000 or less remain jailed and unable to make bond.
“There’s plenty of clients to look at — but some people are just too poor to pay even that,” the sheriff continued.
Lowering rates would not be illegal, and part of that is because laws governing bail bonds industries are scant, said Lauryn Gouldin, a professor at the Syracuse University School of Law.
“The way the bail bonds industry has become a significant piece … in jurisdictions is not really something I think of being anticipated in any laws anyway,” she said.
Judge Morton said he believes magistrates, who set initial bail amounts at probable cause hearings, are already setting those bonds higher than in previous years. But judges have to consider the defendant’s case independently from what bail agents might be doing, he said.
“It doesn’t make sense to set bond at $30,000 because you think they might pay $3,000,” Morton said. “Especially when you don’t have access to any of their (bail companies’) records.”
Regulating bail companies is possible in some jurisdictions, to an extent, Page said. Minnesota in 2016 required bail records to be audited by the surety company associated with each bail bond company and share those results with the state.
Jeffrey J. Clayton, executive director and policy director of the American Bail Coalition, said a minimum bail fee percentage is possible to enforce through state legislatures. A “floor” isn’t in place in most states, meaning bail agents can lower their rates as much as they feel they need to, Clayton said.
“Sometimes it does tilt the balance too far,” he said. “Jurisdictions should look at this, and where they come down on it is up to them.”
Texas this year proved that something could be done when lawmakers attempted to restrict the activities of charitable bail companies, which usually post bail on behalf of poor defendants, several advocates said. After pushback, the state instead wrote into law that charitable bail funds need to be classified as nonprofits and file reports on who they bond out of jail — something that could have been done for bail companies but was never broached, those advocates noted.
“The Legislature could have required transparency from everyone who posts bond, specifically the $2 billion for-profit bail bond industry, but instead intentionally targeted charitable bail funds,” said Twyla Carter, national legal and policy director for the Bail Project, a charitable bail fund. “We should ask ourselves why.”
Strickland, of the Bail Bond Board, takes exception to the charitable bail groups — with one grievance that they’re not licensed like he and other bail agents.
“I think they’re out there competing just like we are,” Strickland said.
Source : https://www.houstonchronicle.com/news/houston-texas/crime/article/harris-county-judges-felony-bonds-critics-16532819.php5628