Defendants unable to pay their full bond would have no choice but to use a bail bondsman or sit in jail under a bill pending in the Missouri General Assembly.
The measure — which the bail bond industry argues is essential for its survival — stalled earlier this year when the legislation failed to pass out of a House committee.
But supporters managed to attach it as an amendment to a pair of bills heading to a conference committee to work out differences between the House and Senate, keeping it alive as the legislative session approaches adjournment next Friday.
“We are extremely hopeful that this can finally get done,” said Bart Cooper, owner of Freedom Bonding in Kansas City.
Critics, however, contend the potential change could be devastating.
“This is just terrible public policy,” said Eric Zahnd, Platte County prosecuting attorney and president-elect of the Missouri Association of Prosecuting Attorneys. “I certainly hope it’s not too late to stop this from becoming law.”
Currently, a judge can allow defendants to post bail by paying a 10 percent deposit of the full amount with the court, along with a promise to pay the remainder if they skip their court date. That money can eventually be refunded or used to pay fees or fines or retain a private attorney.
Bail bondsmen typically charge a nonrefundable 10 percent fee, then assume the risk for the remainder if the defendant doesn’t show up in court.
So if a judge sets bail at $10,000, the defendant could either pay $1,000 to the court or pay a $1,000 fee to a bondsman.
The proposed change would eliminate such percentage bonds, a potential windfall for the bail bondsman industry.
Cooper argued that it would also have a positive impact for the state.
“Failure to appear (in court) rates are far lower when a bail bondsman is involved because we have a great incentive to make sure the person shows up,” he said. “If they don’t, I’m on the hook for the entire bond. Basically, we are taking all the risk, so we take great care to make sure you show up.”
A lot of defendants, when given the opportunity to post a percentage of their bail, just chalk it up as “a cost of doing business,” Cooper said. Police and prosecutors don’t have the resources to track them down, a job that bail bondsmen are equipped to do, he said.
Cooper points to research conduced by an industry trade group showing states that allow percentage bonds have a higher rate of defendants failing to appear in court than those that do not.
But Zahnd countered that many times the 10 percent bond is used by defendants to retain an attorney, who “does a pretty good job of making sure their client shows up.” In his 10 years as a prosecutor, Zahnd said, he has not seen any evidence that percentage bonds lead to problems cited by the bondsman industry.
By posting bond, Zahnd said many defendants disqualify themselves from the public defender system. Forcing them to turn that money over instead to a bail bondsman is irresponsible, he said.
The legislation also would effectively do away with “cash only” bonds. Those are bonds that a judge requires to be paid in full by the defendant before being released from jail. Under the proposed changes, judges would be required to accept a guarantee from a bail bondsman in lieu of full payment.
“A lot of times, that money is eventually used for victim restitution payments,” Zahnd said. “Eliminating cash bonds would limit the amount of money for victims in those cases.”
Rep. Chris Kelly, a Columbia Democrat and a former circuit court judge, said he has serious reservations about changing the bond system, specifically the end of cash-only bonds.
Sometimes a judge wants a defendant to remain jailed, such as in domestic violence cases, where “you want to keep them in overnight just to cool them off,” Kelly explained. There also are instances where you want the defendant to be invested when they are released, he said, both to ensure that they show up in court and to make sure they behave while they are out.
“My inclination is to be skeptical of this legislation, arising from my experience as a judge,” Kelly said. “But I’m not unalterably opposed to considering it or some version of it.”
Cooper said that if judges really wanted to keep someone in jail, they could simply deny bond. And he stressed that failure to eliminate percentage bonds would force many bondsmen out of business.
“If we don’t attempt to address the issue of 10 percent bonds, we’re not going to be around,” he said.
Zahnd said prosecutors, judges and victims groups already are urging lawmakers to reject the changes.
“I thought this idea was already dead,” he said. “I’m a little surprised to see it is so close to becoming law.”
A conference committee for each bill must decide whether to remove the bail bonding provisions. If they don’t, a vote by the House and Senate would send them to the governor.