Judges set bail, but it’s the bondsmen who decide how much a defendant pays to get out of jail.
The long-held 10 percent standard — with defendants or their loved ones paying a tenth of the bail amount to a private company — is not gospel anymore in Harris County and likely never was. People have been securing their release from jail on lower fees for years, according to county data and bail agents.
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 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.
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.
There’s more, so read the rest. As the story notes, only the US and the Philippines have this sort of cash bail system, and that just seems to me like a bad place to be. As you know, I’m a believer in getting rid of cash bail as part of a larger overhaul of the criminal justice system. We’ve taken a small but important step forward in Harris County, but there’s still a lot to do and a lot of resistance to overcome. This story will give you a feel for some of that.