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Just funny money

Oregon is owed $81 million in bail; does anyone care?
by: CHRISTOPHER ONSTOTT Vancouver, Wash., bail bondsman David Regan searches for a client who failed to appear in court and defaulted on his bail. If he cannot bring the client to court, Regan will owe the court the full default amount. Bail bondsmen such as Regan are not allowed to operate in Oregon.

First of two stories

Imagine a world of criminal justice where you could ignore a judge's decree. Maybe you've been arrested, but you don't show up for a court date.

Bad news there, right?

Or maybe the judge, noting your failure to show up for trial, says you now owe the court $5,000 or $10,000 or even $50,000 (it's called forfeited bail) and you'd better pay up.

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Let's say you don't pay up. Year after year goes by, and you ignore the money you owe. Now you're in trouble, right?

Not really - not in Oregon, where everyone knows that defaulted bail is rarely collected. Oregon is one of four states in the country that do not allow bail bondsmen. That means this state has developed an alternative system for making sure people get to trial.

Defendants who defaulted on their bail because they failed to show up for trials owe $81 million to the state of Oregon. Now, take that $81 million, and consider that in a harsher and more logical system, it could easily be closer to $1 billion. And it wouldn't matter much - because no one goes after the money.

Here's one of those little secrets that dedicated criminals know: Jail is expensive and, in most Oregon counties, in short supply. And, many say, jail is an unfair alternative for people awaiting trial. So criminal justice officials will do just about everything they can to make sure that all but the most dangerous defendants awaiting trial don't stay in jail. Three out of four are released on their own recognizance without bail. When defendants don't show up, that's mostly OK too.

Oregon's system of pretrial release is built on a series of winks and nods, a mélange of progressive ideas and out-of-date concepts cobbled together county by county. In some counties those systems may work on a practical level, but they are almost incomprehensible to all but those on the inside, and they are anything but transparent.

Bail bondsmen, who are lobbying hard in Salem to be allowed to practice in Oregon, operate on a simple, centuries-old premise: The best way to ensure a defendant shows up for trial is to provide a financial incentive. If the judge sets bail at $10,000, then $1,000 down will gain a defendant release pending trial. The defendant collects the $1,000 and gives it to the bail bondsman, who signs a note promising the court that the bonding company will be good for the other $9,000 in forfeited bail if the defendant doesn't show up for trial.

If the defendant shows up, the $1,000 becomes the bail bondsman's fee. He or she gets to keep it. If the defendant skips, the bondsman has a month or longer to produce him for trial before having to pay the court the forfeited bail. And that's where bounty hunters, with their ability to virtually kidnap bail skippers and bring them back to court, come into play. The bondsman, on the hook for the forfeited bail, has the incentive to make sure his client shows on time, or soon thereafter.

Oregon banned bail bondsmen in 1974. But it maintained the 10 percent down, 90 percent default system that exists just about everywhere in the United States. In 2008, according to state data, criminal defendants forfeited $10.1 million when they didn't show up for trials in Oregon. Do the math for the 90 percent forfeit and that should mean there's about $100 million out there each year in forfeited bail. Play it out for 10 years and the forfeited bail owed Oregon would reach $1 billion.

Except it doesn't.

Talk to people in the world of criminal justice - prosecutors, defense lawyers and judges - and they all claim to support the same concept: When dealing with criminal offenders, swiftness and certainty of consequence is more important than harshness. It isn't the severity of a sentence or judgment that changes behavior, they say, so much as criminals knowing that if they do wrong, they will definitely feel the consequences every time, and quickly.

But when it comes to pretrial misconduct, everyone in the system knows that isn't true. Except for those accused of violent crimes, missing a trial date doesn't really matter much. The system still doesn't want you taking up an expensive jail bed. Everybody acknowledges that your defaulted bail - that 90 percent you owe because you didn't show up - is more a matter of smoke-and-mirrors accounting than real money.

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Tribune Photo: Christopher Onstott • Bail bondsmen can legally use stun guns, mace and firearms while apprehending bail skippers in states where they are allowed to practice.

The Philadelphia story

Not everyone believes that forfeited bail is uncollectible. After a series of exposes last year in the Philadelphia Inquirer revealed that the court system there had more than $1 billion in unpaid defaulted bail on the books, and that not much effort was being made to collect it, Philadelphia court administrators formed the Office of Court Compliance to go after the money.

The office has only been operating two months, but it's making headway, having collected $1.4 million each of those two months from offenders who owe defaulted bail or other court costs. About $800,000 a month had been collected before the office opened.

People owing bail forfeiture money in Philadelphia, which, like Oregon, does not allow bail bondsmen, were given until Feb. 28 to pay their forfeited bail, work out a payment plan with the compliance office or face consequences that include garnishment of wages and even property seizure.

So far, 4 percent of the debtors who were sent letters about the program have contacted the compliance office to set up payment plans, according to court officials. The rest are having their bail forfeiture files turned over to one of six legal firms that specialize in collections and who won contracts with the compliance office.

In Oregon, officials say that little defaulted bail is collected because defendants who fail to appear are hard to find and generally have little means. The Philadelphia compliance office found that not all those who owed the court were unemployed. In fact, the office found that 622 city employees were among the debtors, and the city has begun garnishing the wages of those employees, taking up to 20 percent per paycheck.

Karl Dargan, Philadelphia court compliance officer, says that at least one home has been seized from a resident who owed a large amount of defaulted bail but that the object of the program is not to overburden indigent offenders.

'We don't want to turn into debtors prison here in Philadelphia,' Dargan says. 'The main thing is to bring them in, schedule a payment plan and get them consistently paying.'

Sending a 'terrible message'

In Oregon, uncollected bail is turned over to the state Department of Revenue, which can withhold tax refunds and garnish wages. Revenue department officials say they cannot give a figure on the amount of defaulted bail they have collected because court judgments combine bail with uncollected restitution and other court costs.

Bail bondsmen say they manage to collect some of the money bail skippers owe them, but that often involves repossessing cars or boats - not a practice courts want to involve themselves in.

'Some criminals have money. They just don't leave it in banks and they don't file tax returns,' says Dennis Bartlett, executive director of the American Bail Association, who has been lobbying state legislators to bring bondsmen back to Oregon.

Clatsop County District Attorney Josh Marquis calls the Oregon bail situation 'Kafkaesque.' When defendants post 10 percent of bail to gain release, Marquis says, the understanding is if they don't show up for trial they will owe the other 90 percent. But that rarely happens in practice.

First, if a defendant who fails to appear shows up within 30 days, bail is not forfeited. Many times, the 10 percent of bail is posted by family members, who then are liable for the full bail when the defendant fails to appear. But judges are often willing to forgive the 90 percent, and even sometimes return the 10 percent, at bail-forfeiture hearings.

'They (family members) come into court saying, 'Judge, if this money is forfeited, it's my kids' college fund,' ' Marquis says. 'For understandable human reasons, in many cases the amount is not forfeited. I understand it as a human being, but as policy, in the long run, it's a terrible message.'

Lewis and Clark Law School professor Tung Yin doesn't think the public would accept judges going hard after that 90 percent of defaulted bail if it comes to taking away the house of a grandmother who signed the note for a grandson's bail.

'Suppose a judge throws out grandma, how would the media do the story?' Yin asks. 'I think the public would be outraged at the judge for that decision.'

Charles French, Multnomah County deputy district attorney, says defendants know how to stay one step ahead of the system. Required to put up 10 percent of their bail to gain release, French says, many call on family members. But rather than have dad or grandma post the bail and be left liable for the full amount if the defendant should skip, they get family or friends to give them the money. Then they post their own bail. If they skip, they owe the other 90 percent, not family members.

No justice for victims

Lewis and Clark Law School professor Meg Garvin, executive director of the National Crime Victim Law Institute, says that allowing defendants to miss court dates and ignore bail defaults without suffering consequences leaves out one more player in the process - crime victims.

'In the pretrial process victims are rarely considered,' Garvin says. 'Victims are under the impression that if you fail to appear and fail to pay you'll be taken into custody. If you ask a victim, that's what you'll hear. And that's not the way our system is working.'

Bondsman Bartlett says Oregon's system sends the wrong message to career criminals.

'The criminals have no incentive for coming back,' he says. 'They pay 10 percent. Many consider that the price of a life of crime. They're still held liable for the other 90 percent, but nobody comes to collect that and they know that.'

Gail Meyer, lobbyist for the Oregon Criminal Defense Lawyers Association, takes a different perspective. Unpaid forfeiture isn't doing much harm, she says, because it's not what defendants are focused on.

'I don't think it's translating to a cavalier notion among defendants that it's not a problem to walk away,' Meyer says. 'They're worried about losing the 10 percent.'

Marquis says it might make sense to stop setting bail at amounts few defendants can pay should they forfeit. Real bail, set at the 10 percent amount, might work, he says. Otherwise, Marquis says, the message somehow must be made clear to what he describes as 'the weeping aunt at forfeiture hearings' that signing for bail means what it says.

The current system, Marquis says, is creating a scofflaw effect, where defendants and their attorneys know bail isn't real money.

'This is sort of a dirty little secret,' Marquis says. 'The more logical thing to do is just be honest about it. Why claim we're putting a quarter million dollars' bail on somebody when we're really not? Not only are we not collecting it, but we're not even retaining the 10 percent.'