Bail Security: A Penalty Rather Than Security for Appearance in Court

photo from survivegoingtojail.com

A friend of mine was recently jailed locally, and though poor himself was bailed out after spending about a week in jail. This led me to a process of discovering that bail security posted is not primarily to assure that the person released will show up for his court appearances. It is used as a way to fine the person who posts the bail security and gain money for the state.

In Oregon the security required is 10% of the total bail. (ORS 135.265) It is used by the state whether the defendant attends court appearances and maintains good conduct or not.

In the first place, the state takes 15% of the security for administrative costs. Huh? Not a standard fee, but 15% of whatever it is. If the bail is $20,000, the security is $2,000, and you just lost $300. If the bail is $200,000, the security is $20,000, and you just lost $3,000.

Second, they can use the bail security money for pretty much anything they want having to do with the defendant. It is regarded as the defendant's funds not the person's funds who posts the bail.

"Security deposit provided by third party is regarded as belonging to defendant and may be withheld to pay obliga­tions of defendant. State v. Grant, 44 Or App 671, 606 P2d 1166 (1980)"

Further, it can be used to pay anything related to the defendant whether it has to do with the charges in question or not.

"Security deposit may be withheld to pay obliga­tions of defendant unrelated to matter for which security was given. State v. Baker, 165 Or App 565, 998 P2d 700 (2000), Sup Ct review denied"

You can be pretty sure that they will find a use for all of it in some relationship or other to the defendant.

Here are some arguments from Robert L. Wolf setting forth the problems with the current system.

1. When the state takes security money from a third party who posts the bail, they are punishing an innocent person.

"If the money is posted by a third party, that third party becomes personally responsible for the entire judgment if for whatever reason the defendant's release is revoked. Similarly, if the defendant fully complies will the release agreement, then the money is returned to the third party, and not to the defendant. Any bail money posted by a third party remains property of the third party, and not property of the defendant. Therefore, if bail money is seized by the court - despite the defendant complying with all conditions of the defendant's release - and used to pay any other financial obligation of the defendant, the state has engaged in an unlawful taking under both the state and federal constitutions. Article 1, section 18 of the Oregon Constitution, and the Fifth and Fourteenth Amendments of the United States Constitution. Only money that belongs to the defendant can be seized and used to pay that defendant's personal obligations - not money that still belongs to third parties." 

2. Taking the bail deposit of third parties whether or not the defendant shows up in court, "will have a chilling effect on suspects ability to secure and have bail posted for them." Chilling, indeed.

3. By legislation the purpose of bail is only "to secure that a suspect on release both returns to court and does not commit any misconduct while on release." It "is not intended to provide revenue to the state."

"The Owens court specifically held that the security amount must not be set so high as to "make it impossible, as a practical matter, for a prisoner to secure his release." 285 Or. at 80. The bail amount, therefore, must be a realistic amount set allowing defendants of all classes to be able to secure their release. If bail posted by third parties is subject to seizure - despite a defendant's full compliance with all the terms of a release agreement - then the courts will be discriminating against those who do not have financial ability to make bail on their own. . . . The result is that defendants are forced to stay incarcerated, not because they are poor candidates for release on bail, nor because they cannot find the money to post a security, but because they are unable to have enough to pay an entire bond to the county."

It is true that the bail security agreement requires the person giving the security to agree to give "all or part of the amount posted" to "court ordered obligations, such as payment of restitution, child or spousal support, fees, expenses, court costs or court appointed attorney fees." But, it's the only game in town. The signer has a gun to his head. Sign or the supposedly "innocent until proven guilty" person sits in jail until trial.

Of course, this is especially egregious for the poor. My friend who was bailed out would be sitting in jail until his trial date. Incidentally it is about the same amount of time he would serve if declared guilty of the charges against him. Wow, lose-lose. Serve the time whether you are guilty or not or pay a big fine. Nice choice.

Oh, and the plea deal was plead guilty and serve only a third of the time a conviction would require and be on parole. If you were poor, with no one to post bail, would you choose pleading guilty even if you weren't and serve only a third of the time you would serve anyway until the trial date? I wonder how many poor defendants plead guilty just not to serve the time.