Most people think of the bail system as one where people who get arrested can post bail money to get out of jail until their trial begins. People who don’t have the cash for their bail can find a bail bonds agent to put up the funds.
In Louisiana, though, the commercial bail industry has become a powerful — and controversial — system. Louisiana is unique compared to some other states because the criminal justice system uses bail to fund itself, with a percentage of every bond in New Orleans being used as funds for judges and their offices.
The logic behind a money bail system was to ensure that a defendant shows up for trial. If they do and don’t get convicted, they get their money back. But some critics of the bail system are lobbying for reform, including in New Orleans, where there’s a push to end money bail for most municipal crimes.
Why has bail become more controversial, and how does the system work in Louisiana?
How Does Someone Post Bail in Louisiana?
In Louisiana, there’s no constitutional right to bail. Some defendants are not allowed to be released on bail, including those accused of capital offenses where the court determines the presumption of guilt is high, or if the judge determines there’s a substantial risk that the defendant might flee or pose a danger to the community.
Those who do qualify for bail have several options for getting out of jail. They include:
- Personal Recognizance: Non-violent defendants can ask the court to consider a release without bond security.
- Cash Bond: The defendant or a co-signer puts up the entire amount of the bail.
- Commercial Surety Bond: The bail money is put up by a bail bond company after signing a contract with a defendant to receive 12 percent of the bail amount in exchange for guaranteeing the entire amount to the court. The 12 percent premium is non-refundable. Bail bond companies usually require a co-signer.
- Property Bond: A defendant or a co-signer needs to put up a piece of property to cover the cost of bail.
- Personal Surety Bond Undertaking: A third party is brought in who pledges to guarantee the bail amount. A hearing is conducted to determine if the third party is financially capable of co-signing on behalf of the defendant.
When a defendant is first booked into jail and the booking process is over, the defendant is allowed to make a phone call, which could be to a bail bond agent. For most misdemeanors, defendants can usually be booked and post bond within a few hours. For more serious crimes, the State of Louisiana requires defendants to be brought before a judge within 72 hours of arrest, and bail can be set during their arraignment. If the inmate can’t pay the cost of the bail, then they remain in custody until their court date.
A bail bondsman can pay the amount of the bail to the courts in exchange for a payment of 10% the bail amount, and the courts hold the money until their court date arrives. If the defendant shows up for their court date, the bondsman gets back the entire amount of the bail. The inmate won’t get any money back since the 10% premium is payment for the bail bondsman’s services. If the inmate fails to show up, all financial obligations to the bonds agency fall on the defendant.
Why is Louisiana’s Bail System Under Attack?
In June 2019, the Vera Institute of Justice published a report urging the city of New Orleans to end the use of money bail, eliminate fees charged to defendants when they get convicted, and instead spend more on the city’s criminal justice system — a plan that the institute estimated would reduce the jail population by half.
Their report argued that in 2017, New Orleans residents paid $6.8 million for bail fees and premiums and $1.9 million in conviction fees, with most of those costs being paid by poor black families, while failing to make the city safer from crime. Instead, they recommend that the city spend $2.8 million more to fund the district attorney and public defender’s offices to help cover money those departments now receive from bail and conviction fees.
While Louisiana state law requires judges to set cash bonds for some crimes, the Vera report recommends that judges get around this by setting nominal bail amounts, as low as one dollar, to ensure the bail amount isn’t the determining factor in a defendant’s pretrial release.
Critics have also claimed that judges have a conflict of interest when assessing bail and conviction fees, since a portion of those fees go to funding court operations. Critics also say the bail system discriminates against defendants who can’t afford to buy their way out jail while awaiting their court date, and that’s led to an expansion of the jail population by locking up people who can’t pay to get out.
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