SC law allows criminal suspects to pay bail on installment plans +SURVEY

nophillips@thestate.comDecember 7, 2013 

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  • Recommendations from the mayor’s panel The Mayor’s Panel on Violent Crime and Bond Reform was formed over the summer to make recommendations for state legislation and Columbia Police Department policies that could prevent violent criminals from being repeatedly released from jail on bond. The following recommendations will be made when the panel presents its final report Tuesday night to City Council:

    • The Columbia Police Department should develop a basic risk assessment program so its officers can provide information to prosecutors on defendant’s backgrounds.

    • Columbia police officers should attend all bond hearings on violent crimes.

    • The Legislature should pass Senate Bill 19, which would require a circuit court judge to hold a hearing on anyone who commits a violent crime while out of jail on bond for another crime.

    • The state should establish a penalty for those who commit a new crime while on bond.

    • State law should be amended so that judges can set higher bonds for those who are in gangs.

    • State law should be amended so that juvenile records can be considered during bond hearings for adult defendants.

    • Minimum down payments should be increased for defendants who pay bond fees using installment plans.

    • Bondsmen should sign a notarized form to confirm that bonds have not been paid with money gained through a criminal enterprise.

    • The S.C. Department of Probation, Parole and Pardon should supervise electronic monitoring of defendants who are out on bond.

    • The Early Legal Assistance program between Columbia police and the 5th Circuit Solicitor’s Office should continue. That program assigns a prosecutor to work with police in deciding what charges to bring in a case.

A Columbia panel organized to recommend changes in the state’s bail bond system is demanding a change in the law that allows people to be released from jail with minimum down payments and lengthy installment plans.

Under the current system, a person arrested on a violent crime and given a bond of $100,000 may pay as little as $2,000 to be released from jail. And, there is nothing in the law that requires that person to go back to jail should he stop making payments to his bail bondsmen, according to a report written by the Mayor’s Panel on Violent Crime and Bond Reform.

The panel wants the S.C. General Assembly or the S.C. Department of Insurance to raise the minimum down payment for bonds and to put a cap on the length of payment plans. It’s a recommendation that has support from prosecutors, law enforcement and even some bail bondsmen.

The group wants defendants, especially those charged with violent crimes, to pay higher fees to be released from jail. That way, those suspects have more money invested in their own behavior. Or, as Laura Hudson, executive director of the S.C. Crime Victims Council, said, “They need to have more skin in the game.”

The changes will be included in a final report from the mayor’s panel, which will be presented Tuesday night to Columbia City Council.

Bail bonds have become a big issue in the Midlands after a string of high profile shootings in which the suspects were out of jail on bond when they were re-arrested on additional violent criminal charges. The tipping point came in July, when 33-year-old Kelly Hunnewell was shot to death while working an early morning shift at a bakery and it was discovered that two of the three people charged with her killing were out of jail on bond. Mayor Steve Benjamin, in response to public pressure, assembled a panel of lawyers, police, judges and victims’ advocates to study the issue and make recommendations for change.

Prosecutors, defense attorneys, judges and some law enforcement officials are aware of the process that allows criminal suspects to be released after putting up a small percentage of their total bond.

The public knows that suspects only put down a percentage of a bond amount to get out of jail. But they probably don’t know the suspects can finance what they pay, putting down even less than people might imagine, said Robert Stewart, a former State Law Enforcement Division chief who led the Mayor’s Panel on Violent Crime and Bond Reform.

The situation is frustrating for prosecutors and police who feel it’s too easy for criminals to get out of jail and return to a life of crime, said 5th Circuit Solicitor Dan Johnson.

“When we argue for a high bond, there’s no way to tell what that bond would actually be,” when the suspect goes to pay it, Johnson said. “It’s frustrating. It shouldn’t be that way.”

What’s legal

Bonds are not meant to be a punishment for being arrested.

They exist so people do not have to spend years in jail awaiting their trials. The bond serves as a financial guarantee that a suspect will show up for future court hearings, including a trial.

The bond process is established by state law, but judges have discretion over how high a bond will be. They can set a higher bond for someone who is arrested on a violent crime or is considered a flight risk. They also can deny bonds in some cases.

Rarely is anyone required to put up the full amount of a bond, whether they are arrested on either a minor charge, such as shoplifting, or a serious crime, such as first-degree burglary. Instead, they pay a percentage and then are on the hook for the balance should they fail to come court.

Bail bondsmen come into the picture when people do not have enough cash to pay for their release.

In most cases, the bonds are insurance policies; the bondsmen are the agents who sell the policies, then pay them off over time. Bondsmen also are responsible for their clients’ court appearances.

The bondsmen guarantee the full amount of the bond and then collect a fee from the defendant for the service.

Under the current system, state law says that bail bondsmen may charge a minimum payment of $25 and a maximum of 15 percent of the total amount on the bond. So a person who is given a $100,000 bond will not pay more than $15,000.

The industry standard is for bondsmen to collect 10 percent of a bond. That covers the insurance policy, which is used to guarantee the full amount on the bond, and the bondsmen’s work in making sure the defendant shows up in court, said Don Mescia, legislative chairman for the S.C. Bail Agents Association and the owner of a Charleston bonding company.

Most bondsmen want a down payment that would cover the cost of the insurance policy, which is between 2.5 percent to 3 percent of a bond.

So, if a person has been given a $100,000 bond, then a bail bond company would charge him $10,000 to sign for his release from jail. The company might collect $3,000 up front to cover the cost of the insurance policy and then would allow the client to pay the remaining $7,000 over time.

While that is the industry standard, there is nothing in South Carolina law that allows a bonding company to charge a lower fee.

“Have fees been lessened through competition?” Mescia said. “Yes. There are bondsmen out there writing bonds with a fee of 2 to 3 percent.”

He went on to say, “I don’t have to charge 10 percent. I can write a policy for whatever amount I want as long as it’s above the $25.”

Still, Mescia said most bondsmen charge a reasonable down payment to cover their own expenses for the insurance policy.

“It’s not something that is happening on a grand scale within the industry,” Mescia said of extremely low down payments. “I don’t see many agents going that low. I can’t say no one does, but those affiliated with my organization probably don’t. I will say I have seen them go as low as 3 percent.”

But he said, “That doesn’t diminish the bond. The payment is a guarantee the party will appear in court to answer to the charges.”

But Johnson, the prosecutor, said such a wide fee scale is what makes bonds so confusing to the public. It’s nearly impossible to know exactly how much a violent criminal actually pays to get out of jail, he said.

It also puts judges in a bad position because they also don’t know what a bond company is going to charge for its services, Johnson said.

“The key issue is that the amount of the bond is not the amount people think it is,” he said. “When they are not having to come up with that specific amount of money, it is deceptive.”

No risk for not paying?

Another problem the bond panel found is that there is no deadline for when the payments must be completed to the bond agent, Stewart said. People can pay on them for years or not pay at all.

If someone fails to finish paying a fee to a bondsmen, there is no provision in state law to send the offender back to jail, Stewart said.

Johnson said a bondsman could remove himself from the case, thereby sending the suspect back to jail.

But Mescia said that isn’t very simple. A bondsman must go to court to ask a judge to remove him from a person’s bond and often those requests are denied, he said.

In the report, the mayor’s bond panel has suggested a change that would allow installment plans to continue but would raise the minimum amounts paid by defendants. The panel also recommends a time limit on when the outstanding balance must be paid to the bondsmen.

The bond agents group has not taken an official position, Mescia said. But his group has a proposal on the table.

The proposed plan would require defendants to pay 10 percent to a bondsman and make a down payment of either $50 or 5 percent of the bond, whichever is greater. And the installment payments would have to be made within 18 months, Mescia said.

Under that scenario, someone who receives a $100,000 bond would have to pay $10,000 to the bonding company. But the down payment would have to be $5,000, and the remaining $5,000 would have to be paid within 18 months.

Ray Farmer, director of the S.C. Department of Insurance, said that change would require legislative action.

“The regulations we set are rules that develop from what the Legislature passes,” Farmer said.

So far, the bail agents association has not written a draft bill or recruited a legislator to sponsor it.

But that proposal would fit the bond reform panel’s recommendation for change.

The goal is to tighten the system so it is not so cheap and easy for violent criminal suspects to get out of jail, Stewart said.

Mescia said his group’s proposal would make it easier for judges and the public to know exactly what a suspect is paying – a firm 10 percent of the total bond.

“The courts then would know there is a minimum down payment,” Mescia said. “It would end the shell game of how much is being paid up front.”

Reach Phillips at (803) 771-8307.

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