"Bail Bond Fairness Act” Bad for Bail Recovery Agents

November 17, 2008 by Scott Harrell

Bail Enforcement Agents, Bail Recovery Agents and Bounty Hunters:

If you read our newest featured editorial in the Bail Enforcement where PBUS is supporting the Bail Bond Fairness Act currently before the US Senate (S.2495) you will see ANOTHER obtuse attempt by the Professional Bail Agents of the United States to stamp out the private fugitive recovery industry.

S.2495 attempts to shift the liability off of the bail bondsman and onto the defendant in instances where the defendant has not honored the conditions of his or her bond (weekly check in, traveling outside of the state, drinking or using drugs, not meeting their financial obligations to the bonding company, etc.).
PBUS would have you believe that they are just trying to hold the defendant accountable for their actions, when in reality the Bail Bond Fairness Act is a thinly disguised attempt to find another way to alleviate themselves from the liability of a bail bond when the defendant fails to appear.

After all, failure to appear is obviously a violation of the conditions of bail.

What does this mean to the fugitive recovery industry?
IT MEANS A LOT LESS WORK and many of us will be out of business soon. If the bondsman does not have to pay off the bond and it never goes into forfeiture then why would he or she need to hire a recovery agent?

What does this mean to society and the communities in which we live, work and play?

It means that we will be sharing the streets with an increasing number of bail fugitives who will then game the system knowing that they will walk free until an already over-worked and under-funded law enforcement agency stumbles upon the defendant out of pure luck. It will mean that the victims of crime committed by bail fugitives may never get the justice they deserve.

Justice deferred, is justice denied.

PBUS has consistently and unabashedly worked against our industry:
They supported the “Bounty Hunter Responsibility Act,” which was another obvious attempt by the few members left at PBUS to absolve themselves of the liability of using untrained and unprofessional recovery agents so that they could pay real recovery professionals even less than the current industry standard. When the Bounty Hunter’s Responsibility Act was making the rounds in Federal legislation, it would have required national licensing and training standards (a GREAT thing for the overall health of the recovery industry), they sounded the alarm and really did their best to quash it- despite the fact that it did not have enough momentum to make it anyway. Why did they do that? Hmmm. It doesn’t take a rocket scientist to understand that Federal law would have legitimized the bail enforcement profession nationally and the professionals would have been able to charge more money for our services because the “less-than-professionals” would have gone out of business.

If you’d follow their logic PBUS would have you believe that the bail industry would like to use cheap, untrained and unlicensed recovery agents because they would incur no liability for their hunter’s actions.

PBUS has made many attempts to pass state-specific laws making it a legal requirement that local law enforcement respond to every bail bondsman’s call when he or she is requesting assistance in getting a defendant back into custody as well. Read: why pay for recovery agents when you can get a cop to do it for free?

Lastly, let’s not forget that PBUS has supported Duane Chapman and invited him to be a keynote speaker at their national conferences despite the fact that he makes us all look like a bunch of unprofessional lunatics running around in WWE costumes, threatening and swearing at everyone if an over-sized can of pepper spray.

I urge every one of you to read PBUS’ statement and work against them at every turn. Call, email and fax your senators and express your disapproval of the Bail Bond Fairness Act because it will put more fugitives on the street, overtax our law enforcement agencies and undermines the entire commercial bail system in the United States. Remember, they don’t want to hear you whining about losing income- you will have less credibility in making your case. Stick to the facts and emphasize strongly that the Criminal Justice system requires that these defendants have their day in court and that the Bail Bond Fairness Act removes the only incentive the surety has in making sure that the defendant eventually returns to court via the forfeiture of the bail bond.

SO WHAT DOES EVERYONE THINK ON THIS ISSUE???

Here is the link to the PBUS view:
http://pursuitmag.com/2008/11/professional-bail-agents-of-the-united-states-pbus-supports-bail-bond-fairness-act/

_________________
Heritage and Profession Together

J.G. Marshall
MARSHALL FUGITIVE SERVICE
Lic. # 2008-392
Moderator


Its the Irish in my mind that keeps me sane,
and the Irish in my heart that keeps me strong.

I agree with you. Living in Wisconsin, where we don't have bonding companies, I can assure you that Law Enforcement doesn't go out of their way to find anyone with an active warrant because of failure to appear in court. Being a former deputy, I know how the system works. The only way a person with a fta warrant will get caught is when they're stopped for some other violation. With all the budget cuts going on, I can't see very many departments spending time or manpower to look for bail skips. If I were a judge, I would much rather hold the bondsman accountable for producing the skip rather than to rely on some officer stumbling across them. At least I would know that someone is out looking for them. Our jails and intakes are so overcrowded now, that the system is allowing them to post bail on alot of crimes they wouldn't have been able to say 5 years ago. I personally know of one individual living next to my sister with an active warrant for felony theft. The sheriff's department knows him, where he lives, what he drives, and where he works. He has had this warrant for about 2 months. He'll be running around until he gets pulled over for a traffic violation and the warrant pops up! I firmly believe that will happen to the bonding states if the law changes. Just an opinion.

Currently there are very few insurance companies that write Federal Bail because if a defendant fails to comply with any condition of release as described in the above post, the bond is ordered forfieted by the court. The surety is then required to pay the bond, whether or not the defendant missed a court date. This makes Federal Bonds extremely risky. I know my insurance company will not do Federal bonds for this reason. The only purpose of bail is and should be the appearance of the defendant at judicial proceedings.

I agree with the Bail Bond Fairness Act and believe it would be good for the commercial bail industry in the United States. It would open up more opportunities to post Federal Bonds, which would give recovery agents the possibillity of obtaining more work, not less.

ajl424 ,

Sir you need to add attach a signature line to all of your post.

_________________
Steve Faircloth
A Way Out Bail Bonds
(220) 204-9733 Cell
NSIN# SF0105
LIC. #704058

Here is the text of the Bail Bond fairness Act.


[i]110TH CONGRESS
1ST SESSION S. 2495
To amend title 18, United States Code, and the Federal Rules of Criminal
Procedure with respect to bail bond forfeitures.
IN THE SENATE OF THE UNITED STATES
DECEMBER 18, 2007
Mr. REID (for Mr. BIDEN (for himself, Mr. SPECTER, Mr. GRAHAM, and Mr.
CARDIN)) introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
To amend title 18, United States Code, and the Federal
Rules of Criminal Procedure with respect to bail bond
forfeitures.
1 Be it enacted by the Senate and House of Representa2
tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘Bail Bond Fairness
5 Act of 2007’’.
6 SEC. 2. FINDINGS AND PURPOSES.
7 (a) FINDINGS.—The Congress makes the following

•S 2495 IS
Historically, the sole purpose of bail in the United States was to ensure the defendant’s physical
presence before a court. The bail bond would be declared forfeited only when the defendant actually
failed to appear as ordered. Violations of other, collateral conditions of release might cause release to
be revoked, but would not cause the bond to be forfeited. This historical basis of bail bonds best served
the interests of the Federal criminal justice system.

Currently, however, Federal judges have merged the purposes of bail and other conditions of
release. These judges now order bonds forfeited in cases in which the defendant actually appears as ordered but he fails to comply with some collateral condition of release. The judges rely on Federal Rule
of Criminal Procedure 46(f) as authority to do so.

Federal Rule of Criminal Procedure 46(e) has withstood repeated court challenges. In cases
such as United States v. Vaccaro, 51 F.3d 189 (9th 20 Cir. 1995), the rule has been held to authorize Federal courts specifically to order bonds forfeited for violation of collateral conditions of release and not
simply for failure to appear. Moreover, the Federal courts have continued to uphold and expand the rule
because they find no evidence of congressional intent to the contrary, specifically finding that the
provisions of the Bail Bond Act of 1984 were not intended to supersede the rule.

As a result, the underwriting of bonds for Federal defendants has become virtually impossible.
Where once the bail agent was simply ensuring the defendant’s physical presence, the bail agent now
must guarantee the defendant’s general good behavior. Insofar as the risk for the bail agent has greatly
increased, the industry has been forced to adhere to strict underwriting guidelines, in most cases
requiring full collateral. Consequently, the Federal criminal justice system has been deprived of any meaningful bail bond option.

PURPOSES.—The purposes of this Act are—
(1) to restore bail bonds to their historical origin as a means solely to ensure the defendant’s
physical presence before a court; and
(2) to grant judges the authority to declare bail bonds forfeited only where the defendant actually
fails to appear physically before a court as ordered and not where the defendant violates some other collateral condition of release.

SEC. 3. FAIRNESS IN BAIL BOND FORFEITURE.
Section 3146(d) of title 18, United States Code, is amended by inserting at the end ‘‘The judicial
officer may not declare forfeited a bail bond for violation of a release condition set forth in clauses (i)–(xi), (xiii), or (xiv) of section 3142(c)(1)(B).’’.
Section 3148(a) of title 18, United States Code, is amended by inserting at the end ‘‘Forfeiture of a bail
bond executed under clause (xii) of section 3142(c)(1)(B) is not an available sanction under this section and such forfeiture may be declared only pursuant to section 3146.’’.
(b) Rule 46(f)(1) of the Federal Rules of Criminal Procedure is amended by striking ‘‘a condition of the bond
is breached’’ and inserting ‘‘the defendant fails to appear physically before the court’’.

It is my understaning that Federal judges have forfeited the bonds on people that committed new crimes or violated a COURT condition for release such as not using drugs, association with prohibited persons, etc.
How can a bail agent prevent someone from doing any of those things?
Bail is for appearance ONLY!

The conditions mention in the above post, if set by the COURT, have nothing to do with appearance, so the bond should not be forfeited.

If those conditions are set by the BONDSMAN, then how would the court know if a defendant did not check in with his bondsman, or tarveled out of the state, etc unless the bondsman told the court.

And if those are violations of the BAIL BOND CONTRACT, then the bondsman can surrender the defendant to custody.

So how is this an attempt to eliminate the fugitive recovery profession?

Secondly, the PBUS did NOT invite Duane Chapman to be a Keynote Speaker. His first appearance was after the regular sessions of the conference in Las Vegas in 2006.

They invited his wife(?) Beth to co host a session with a journalist in Las Vegas in 2007. At the convention, the journalist backed out and only Mrs(?) Chapman spoke for 1 1/2 hours.

I was there. She was not a Keynote speaker. I also resigned from the PBUS for having the Chapmans there.

Even if the Fairness Act passes, I would not post federal bonds. It is just too much of a pain in the butt to deal with any federal agency and those cases usually last years. Just not worth it.

To see how federal influences state laws, go down a few posts and look at regarding forfeiture for Conduct not appearance.

Just read the 1st post on that thread. This exactly what the federal judges have been doing for years.

I am tired and I briefed the above . . . If I am reading it correctly this ACT would affect 'Federal Bonds' . . . correct?
So how would that affect the majority ?
Scotts ~ I await your answers

_________________


Do not consider anything for your interest which makes you break your word, quit your modesty, or inclines you to any practice which will not bear the light, or look the world in the face .... Marcus Antonius

I AM Some Folks "KARMA" and A MODERATOR @ FRN

As I previously stated, this Bill only reinforces my state's statutes. The only reason a court can forfeit a bond is if the defendant fails to appear in court.

It seems the Bill would reinforce only the "appearance" condition as a forfeiture cause on Federal bonds. Using that as a precedence, bondsmen in individual states could use it to force their local jurisdiction to follow the precedence of non-appearance versus making the bondsman liable for any other actions of the defendant.

I have never been a member of PBUS, having heard too many negatives, but just because I have heard and don't argue that they may be pro bondsmen, and anti BEA, I have a problem fighting something that seems to be rejected, just because some feel they may have a hidden agenda. My state prohibits me from posting certain bonds, so this isn't an issue for me. I don't think it is fair for my peers to be held liable for extraneous bond conditions, so I agree with the wording of this Bill, ignoring any other political issues or causes. If further issues arise, I will deal with them at that time.

After dealing with and arguing with the recent elections, I'm tired of politics, and that is how I see this. I don't dispute that PBUS is pro bondsman and anti BEA, but that doesn't mean that I will reject any and everything that they support. I do both, and I research and form my own opinion on every issue that I am a part of.

_________________
Kathy Blackshear
Blackshear Investigations
Blackshear Bail Bonds
Sales Associate, Prepaid Legal Services, Inc.
Walsenburg, CO

Proud Member of the AB Reject Club

As a bondsman, I am opposed to forfeiting a bond for anything other than failure to appear, which is all that it guarantees. It appears to me that Judges confuse forfeiture of a Bond as opposed to revocation of the bond for cause. They should and do have the power to revoke any bond for cause. Confusing that with the fiduciary responsibility of a bondsman who guarantees appearance is ridiculous. That said, I support the bill as it is written. In the Federal system, insurance companies have had to severely restrict Federal bond writing or eliminate it all together, to include immigration bonds due to the precedence of forfeiting bonds for other than appearance issues.

As far as PBUS, they parrot the opinions of their financial supporters, the insurance companies, for several reasons. Insurance companies state that they are not part of the vetting process in qualifying a bond, the vetting and hiring practice as it relates to recovery people, but are where the buck stops when a law suit ensues for just cause or just because somebody wants to get paid. Even when the insurance companies defend themselves against liability in these matters for the previously mentioned reasons, it still costs them money.

Insurance companies get a relatively small commission in relation to the bondsman's commission, but are the ones held financially responsible when a bondsman can't or won't pay a forfeiture to the jurisdiction it is owed to. The insurance companies bear culpability in these cases due to lack of training of agents, lack of established vetting procedures or guidelines, and signing up entirely too many agents due to greed. When excessive numbers of competing agents are signed up in the same business area, none of them will ever achieve the financial stability that would ensure that the insurance company would not have to step in to back them up.

Lastly, Insurance companies feel that if the underwriting of the bond is done correctly, then rather than hiring a BEA to chase a FTA subject, the bondsman would civilly motivate the indemnitor to pay the bond in full. In the worst case scenario, the bondsman would pay the forfeiture and have the indemnitor make payments on the bond so the bondsman is made whole. This procedure would eliminate the liability of the insurance company as well as the bondsman resulting from actions of a third party, (Bail Enforcement Agent) thereby eliminating the need for recovery professionals and hence Scott Harrell's position.

I hope I have cleared this up correctly and if I have mistakenly explained somebody else's position or opinion, please correct me.

Scott

_________________
R.E. "Scott" MacLean III

"Leaders are like Eagles, you never see them in a flock, but one at a time"

Chesapeake Group Investigations, Inc.
Chesapeake Bail Bonds
877-574-0500
301-392-1100 (fax)
301-392-1900 (Office)

One of the reasons I like to post after my brother's posts is because I hate typing and eschew long drawn out explainations. Great post Scott and AMEN!

_________________
Joe Stiles
Bail Fast Bonding/
Black Aces Bail Recovery
Knoxville, TN
800-689-5031