Prepared for Submission to the University of Florida Department of Political Science.

Undergraduate Honors Coordinator Professor Richard Conley, and Faculty Advisor Samuel P.

Stafford (Gainesville, Florida), April 6, 2018.

THE COST OF FREEDOM:

PROFITING OFF ARRESTS – BAIL BONDS

Jessica Nabil Basta

Honors Thesis

April 6, 2018

Department of Political Science

University of Florida

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Acknowledgements

I thank my Mother and Father for constantly pushing me, supporting me, and

encouraging me without question for everything that I do. Professor Samuel P. Stafford for

guiding me since my time here at the University of Florida. Your investment in me has inspired

me to reach my full potential and follow my dreams. Chris Carusone and Lanard Perry from

ACCS for granting me the dataset for this study. Brian Amos for his deep statistical guidance.

Chaplain Smith of the ACJ for the educational private jail tour. Finally, my appreciation to

Evan, Alex, Christina, and Alan for their invaluable review and aid.

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Abstract

Among the most troublesome consequences of Western capitalism has been the pressure

for the privatization of the criminal justice system. Although private interests have long been

involved in the criminal justice process, the privatization of arrests via bail bonds has introduced

an additional, subjective third party into the system. Bail bond companies and bondsmen are

private entities that infuse an additional expense that distinguishes those who are financially

depressed over those who are not, serving as yet another obstacle for the poor to overcome. For a

growing number of people, spending nights in jail, or months until trial is no longer becomes a

matter of guilt, but of financial means. In this research paper, I examine whether the State’s

utilization of private bail companies is inefficient and/or unethical under the Fourteenth

Amendment of the United States Constitution, as it disproportionately discriminates against the

poor.

America is realizing that a more egalitarian solution is needed to address the private bail

industry. Both for economic and humanitarian reasons, remedies are necessary to reduce or

eliminate this expense in order to help reform the criminal justice system. It is becoming more

clear each day that an egalitarian criminal justice system must function in an environment blind

to socioeconomic status. Jail has increasingly become a de facto punishment for poverty, as the

poor are forced to remain there in lieu of bail while awaiting trial.

The purpose of this research study is to perform and critically assess a small-scale

analysis of Alachua County and consider those arrestees who were placed into the criminal

justice system in 2016. This study uses detailed and original data of arrests made in Alachua

County, Florida for the year 2016. Further, the basic design model of Document Analysis is

utilized to measure the potential socioeconomic discrimination impact that results from the

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utilization of bail bonds. Specifically, I will examine the pretrial detention rates and bail amounts

in a select sample of detainees at the Alachua County Jail, by using data collected from Alachua

County Court Services (ACCS). This dataset encompasses everyone who was arrested from

January 1, 2016, to December 31, 2016, in Alachua County. For this study, I have reduced the

22,092 data points by controlling for arrestees who have been detained pretrial due to their

inability to post bail. The resulting dataset composed of a total of 2,000 individuals.

In short, my analysis of the 2016 jail population found that nearly 19% were being held

because they could not afford bail and were awaiting their trial. This Honors Thesis recommends

that more assessment and qualitative research into local, state, and national alternatives to the

private bail bond industry needs to be actively pursued by society and all governmental levels.

Keywords: Bail, bail bonds, private bail companies, pretrial detention, low

socioeconomic status, discrimination, economic discrepancy, risk assessment tool,

rubric, bail reform, Alachua County.

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Introduction

Overview:

Bail was once seen as a convenient and equitable means to afford the accused an

opportunity to “free” themselves on a financial promise to return to court for further procedures.

Due to the economic evolution of this system, it has morphed into an unusual and problematic

business venture because it allows private businesspeople, not the State, to decide whether the

presumed innocent person will remain in jail or walk free until their trial. A by-product of the

monetarization of the bail system can potentially allow for dangerous individuals, who can afford

a bail bondsman/agent to be released. Meanwhile, those who cannot afford the cost of the bail,

are locked up, even if the offense is minor and they pose little-to-no risk to the public. The slow

pace of law enforcement investigations, repeated hearing or trial delays tend to traditionally

prolong incarceration of the accused who cannot make bail under the current system. If a

defendant is unable to pay the bail amount set by the judge, this creates a ripple effect on how

their case will be handled, and impacts every aspect of the defendant's case from start to end.

Private bondsmen are deeply involved in the bail-setting process and have been known to

even have collusive/reciprocal arrangements with police, attorneys, and organized crime. As we

investigate ways and procedures to improve the criminal justice system, there must be a

concerted effort to review and ensure that jails and bail bond are used for their intended

purposes: detaining those deemed to be a threat to public safety and assessing conditions for

release.

The unfortunate reality is that much of the jail population is composed of individuals

unable to afford bail, and not necessarily those who pose a threat to public safety. For example,

per the data collected from Alachua County Court Services (ACCS), 361 of the recorded

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detainees at the Alachua County Jail in 2016 alone were nonviolent offenders who were unable

to post a bail of $1,000 or less. The current system of bail in most jurisdictions often allows for

nonviolent offenders to remain behind bars while violent offenders with more serious crimes stay

much shorter periods in jail, or may avoid detention altogether.

An individual’s financial security is not a predictor of a defendant’s propensity to flee or

reoffend prior to the start of their trial. Other factors, such as a defendants' employment status,

criminal history, and relationship with neighbors, family and community ties are more reliable

predictors of an individual’s pretrial behavior. These factors should be seriously and consistently

assessed by those seeking to improve the bail system. By considering a broader assessment

rubric there is an opportunity to reduce some of the unjust impacts of the bail industry based

almost solely on socio-economic discrepancies, classism, and wealth. An examination of the bail

system can also simultaneously alleviate habitual overcrowding of jail and prison facilities.

The reality of the current Criminal Justice System is that it is not working as it is

supposed to. Many cases go unreported and most reported crimes are not turned over to

prosecution, filed, or acted upon. Minor offenses make up 90 percent of the reported crimes and

most felony cases are resolved by pleading guilty prior to trial.1 Obviously, a system as such

does not have the full capacity to take every case to trial, causing extensive filtering and

compromise along all steps of the process. With many different levels of discretion and

judgement calls, biases often take play in arrests and who receives a bail or not. This paper

recommends that more local, state and national research/assessment into alternatives to the

private bail bond industry needs to be actively undertaken by society and government to progress

the system.

1 Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, (2012).

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Question:

The purpose of this study is to assess the following hypotheses:

1. Utilization of bail and private bail companies disproportionately discriminates

against the poor on the basis of wealth/affordability, in comparison to the rich.

2. Race and ethnicity factors disproportionally affect judicial decisions to grant bail

and/or to release defendants before trial.

3. Gender impacts decisions to grant bail or to release defendants before trial.

4. Age of accused impacts decisions to grant bail and/or to release defendants before

trial.

5. A pure monetary bail system preys on the economically down-trodden, and needs

to be replaced with a more egalitarian method to ensure presence at trial.

Summary of Findings:

In summary, my findings showed that 43.24 percent of every individual arrested in

Alachua County in 2016, during the term of the data acquired and examined, were granted the

opportunity to post bail, leaving 56.76 percent incarcerated and awaiting trial. Out of those

awaiting trial, 18.45 percent spent more than one night in jail because they could not post bail.

Additionally, the data was purposefully narrowed to focus only on those who were arrested,

charged with a felony or misdemeanor, served at least one or more nights in jail, were granted a

bail amount of over $0 by the judge, and were awaiting trial. From examination of my collected

data, this group was comprised of 2,000 different individuals.

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When examined superficially, America’s bail system appears simple, but it is much more

complex than it appears. The current bail system in most places allows a non-violent offender to

stay locked up before they have been found guilty simply because they did not meet bail or were

unable to afford the bail bond. This phenomenon was also observed and confirmed at the

Alachua County Department of the Jail. As will be demonstrated in this paper, the frequency and

level of bail has increased dramatically in the United States, and continues to disproportionately

affect and seriously impact those of lower socio-economic status.

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Historical Origins of Bail and the Bail Bondsman Industry

History of Bail:

The history of bail has existed for a long time and is widely documented as being an

integral part of the Criminal Justice System in the United States. In the Florida Constitution, the

terms “bail” and “bond” includes any and all forms of pretrial release.2 The purpose of bail is to

assure reappearance of a defendant in court and prevent them from fleeing. Dependent upon the

severity of the crime and the court's uncertainty about whether a defendant will show up for trial,

a bail will be set. However, beginning in the early 1970s when former President Nixon initiated a

War on Drugs and mass incarceration became habitual in the United States, privatization of

many aspects of the Criminal Justice System also began to expand at all levels.

The United States is the only first-world, Western nation that commercializes bail and

one of only two countries that allow the cottage industry of commercial bail bondsmen, the other

being the Philippines.3 The commercial bond market in America is a for-profit bail system that

has grown into an industry that trades $14 billion each year with private bail firms earning

revenues up to $40 billion annually in the United States.4 Beginning in the 1920s, the United

States commercial bail bond profession flourished because of arbitrarily high bail amounts and a

growing number of defendants who were unable to afford these exorbitant cost.5 During the mid-

1990s, various commercial bail bond organizations worked with the American Legislative

Exchange Council (ALEC) to create an initiative to eliminate both pretrial services and the

2 § 903.011 of the Florida Constitution. 3 Bryce Covert, The Injustice of Cash Bail, (The Nation, November 6, 2017). 4 Michelle Chen, Our Bail-Bond System Is Broken, (The Nation, May 12, 2017),

www.thenation.com/article/our-bail-bond-system-is-broken/. 5 Billings, Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen,

2016.

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possibility of release on personal recognizance in an effort to promote the financial interests of

the commercial surety industry.6

An Overview of Bail – Financing Freedom:

Based loosely upon the severity of the crime and the court's uncertainty about whether a

defendant will show up for trial, a bail may be set. Although one purpose of bail is to ensure that

the arrested individual appears for future court appearances, current criminal procedure requires

higher bail amounts for more egregious or violent crimes. This places increased pressure on the

individual to appear for their court date rather than flee and lose a substantial sum of money,

with the added prospect of being hunted down and dragged to court anyway. If there is no bail

set or a low bail required, it correlates to the court’s determination that there is a low risk the

accused will be absent on their court date or a threat to society.

If the defendant does not have enough money to post the entire bail, the court will accept

a bail bond. A bail bond is a nonrefundable fee, primarily 10 percent, of the bail charge amount,

that is paid in exchange for a bondsman’s promise to pay the court the full amount should the

defendant fail to show up for First Appearance.7 The insurance company, through a bail bond

agency, will charge a premium for posting the bond. The 10 percent premium to post the bond

requires a guarantor to sign for the bond, guaranteeing full payment to the insurance company if

the accused does not appear. If the accused appears at trial, the court returns the insurance

company's bond, and the insurance company keeps the 10 percent for posting the bond,

regardless of the outcome of the case. However, if the accused flees, the insurance company

6 Ibid. 7 Bail bondsmen charge a standard of 10 percent of the full set bail amount but the range is

anywhere between 10 percent and 15 percent.

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loses the full amount of bail it posted with the court and will require the guarantor to reimburse

them.8 If the defendant does not show up for trial, bounty hunters, who have a much discretion as

explained in chapter 648, Bail Bond Agents, of the Florida Statutes, will hunt the defendant down

at virtually any measures.

The Florida Commercial Bail Bond Industry:

The Florida standard of bail is requiring a State bond of 10 percent with a minimum

premium of $100, versus the federal rate of 15 percent with a minimum premium of $0.9 Thus, if

the bail amount is set at $750, the defendant may pay higher than 10 percent to reach the

premium rate of $100.

The 2017 Florida Statutes relevant to this paper include Chapters 648: “Bail Bond

Agents” (Title XXXVII insurance), 903: “Bail” (Title XLVII criminal procedure and

corrections), and 907: “Procedure After Arrest” (Title XLVII criminal procedure and

corrections) of the Florida Constitution, as revised in 1968 and subsequently amended.10

Commercial bail is the predominant form of pretrial release in the United States.11 In

Alachua County alone, there are seventeen different private bail bondsman companies.12 When

arrested in Alachua County, you are placed into the custody of the Alachua County Sheriff's

8 See http://criminal.findlaw.com/criminal-legal-help/bail-bonds.html. 9 http://www.flcourts.otg/. 10 See attached 2017 Florida Statutes Abridged in Appendix C. 11 Timothy R. Schnacke, Michael R. Jones, & Claire M. B. Brooker, The History of Bail and

Pretrial Release, Pretrial Justice Institute (September 24, 2010). 12 HillTop Bail Bonds, Alachua County Bail Bonds Agency, Roundtree Bonding Agency, Mathis

Bail Bonds Agency Gainesville Florida, Lee Calhoun Bail Bonds, Tyrone Baker Bail Bonds,

Thomas Bonding Agency, D. Waldon Bail Bonds, Gary Calhoun Bail Bonds, Brennan Bail,

Agency Bail Bonds by Sam B Wesley II, #1 Anytime Bail 24/7 Inc. Alachua, Days Percy Bail

Bonds LLC, Allie Pruitt Hobdy Bail Bond, Absolute Bail Bonds, AAA Nationwide Bail Bonds,

Amazing Bail Bonds Gainesville Florida.

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Office and transported to the Alachua County local jail facility for booking. Once booked into

the jail, the defendant may be eligible to be released on bail.

Specifically, on April 06, 2018, I took an intimate tour of the Alachua County Jail,

guided by Chaplain Smith. Upon taking a private tour of the facility, I could better understand

and view what an individual must experience in the time between arrest and First Appearance.

This experience served invaluable to my research as it gave a more personable approach that

could only be gained from seeing it with your own eyes and experiencing it hands on. The

process I observed is as follows:

The arrestee is first booked into the jail, where they are scanned with a large x-ray

device, photographed, fingerprinted, and escorted to the showers where they are strip-

searched and examined before being seen by a nurse who will ask them a series of

questions pertaining to their mental health, medical history, and recent illnesses or

injuries.

Once the booking is complete they are placed in a cell, some containing a single

bed while others may have up to six beds, where they have the option to call one of the

fourteen local bail bondsman companies or one of the national agencies that were on a

list found on every cell door, including the name of the bondsman agency and phone

number. To get on this list, a bail bondsman company must pay an agency that provides

this list for the Alachua County Jail. The officers explained to me that they are not

allowed to make recommendations to the arrestee by any means as to whom they should

contact if they wish to seek a bondsman. He did, however, state that he notices some of

these bond companies get contacted much more frequently, but for privacy reasons, the

respective companies will not be disclosed in this paper. It is disconcerting to know the

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available options one has upon arrest for a bail agent is limited as there are monetary

hoops an agency must jump through to be advertised in a jail cell. Defendants also have

the option of paying full the 100 percent of bail in cash themselves.

They are then required to stay the day or night until their first appearance. First

appearance occurs seven days a week at 9:00 AM in Alachua County. The charged

individual will see the judge through video conference, with each case only lasting a few

minutes. The whole process usually takes fewer than two hours to see everyone. The

individual must be booked in the jail prior to 6:00 AM in order to be permitted to attend

the first appearance of that day.

Insurance Companies:

In the United States, there are 15,000 bail bond agents nationwide,13 all with differing

practices and prices, and most of which are backed by a small group of major insurance

companies.14 AIA Bail Bond Insurance Company, Accredited Surety, Randall & Quilter, Tokio

Marine America, Fairfax Financial Holdings, American Surety Company, Financial Casualty &

Surety, Safety National, and United States Surety Company are just a few of the insurance

companies that endorse most of the bail businesses in America.15 This group is composed of

companies who support and assist bail agencies, fight against all bail reform, and continue to

lobby legislatures to remain an actor in the imbalanced industry. On Accredited Surety’s website,

13 http://www.pbus.com/. 14 Udi Ofer, 9 Makor Insurance Companies are Profiting the Most odd the Broken Bail System,

(ACLU, February 12, 2018), https://www.aclu.org/blog/mass-incarceration/smart-justice/9-

major-insurance-companies-are-profiting-most-broken-bail. 15 Bryce Covert, America is Waking up to the Injustice of Cash Bail, (The Nation, October 19,

2017), https://www.thenation.com/article/america-is-waking-up-to-the-injustice-of-cash-bail/.

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it explicitly states that their support extends to assisting bail agencies and protecting the status

quo by fighting bail reform. They also support “legislative efforts to improve and preserve the

bail industry” by investing thousands of dollars in lobbying the Florida legislature.16

Surety companies, or national commercial insurance companies, insure bail bond

company operations and include three-parties: the principal (defendant), the obligee (government

or court), and the surety (bail agent) to reach an agreement. This unique process allows for surety

companies to make money by charging bail agents a 10 percent fee on every bail issued. Surety

companies experience little to no from commercial bail and pay less than one percent in bail

losses.17 These multinational insurance investors fund roughly $14 billion worth of bonds

annually and are profiting off our nation’s most vulnerable citizens by simultaneously selling

liberty and draining resources out of communities that are already impacted by mass

incarceration.

16 Accredited Surety and Casualty Company, Inc., http://www.accredited-inc.com/our-

services/bail/. 17 Abdulai Bah, Big Insurance Behind Bail Bonds, (Aljazeera America, May 23, 2017),

http://america.aljazeera.com/watch/shows/fault-lines/FaultLinesBlog/2014/5/23/the-big-

insurancebehindbailbonds.html.

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Evolution of Federal Case Law Pertaining to Bail

The Eighth Amendment and Excessive Bail:

Bail have been present in the United States since the colonial period and fully thriving

during the early years of the Republic.18 American bail law originated in England, where it was

said that “the right to be bailed…is as old as the law of England itself”.19 The United States’ Bill

of Rights and many of the constitutions of the original states all featured excessive bail clauses.

The Excessive Bail Clause of the Eighth Amendment of the United States Constitution states:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted”.20 The theory was to prohibit the federal government from imposing harsh

penalties on criminal defendants, whether it be pretrial excessive bail or pretrial cruel and

unusual punishment. However, despite the Eighth Amendment’s diction, federal bail law became

a facilitator for an increase in jail and prison populations over time.

1965 Congressional Report:

In the mid-1960s, Congress stated that “an accused’s prospects of pretrial released

depended primarily on his wealth, that a poor defendant suffered considerable disadvantages as a

consequent, and that the existing bail system had no real means of holding those charged with a

crime whose release would pose a danger to the community.”21 The 1965 Congressional Report

went on to state the followng:

18 Charles Doyle, Bail: An Overview of Federal Criminal Law, CRS Report, (Congressional

Research Service, July 31, 2017, https://fas.org/sgp/crs/misc/R40221.pdf. 19 James Fitzjames Stephen, A History of The Criminal Law of England, 223 (1883 Ed.). 20 See Eighth Amendment of the United States Constitution. 21 21 Doyle, Bail: An Overview of Federal Criminal Law, CRS Report, July 31, 2017.

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“Every witness before the subcommittees agreed that…in noncapital cases, the principal

purpose of bail is to assure that the accused will appear in court for his trial…however,

each year thousands of citizens accused of crimes are confined before their innocence or

guilt has been determined by a court of law, not because there is any substantial doubt

that they will appear for trial but merely because they cannot afford money bail. There is

little disagreement that this system is indefensible…the accused who is unable to post

bond, and consequently is held in pretrial detention, is severely handicapped in

preparing his defense. He cannot locate witnesses, cannot consult his lawyer in private,

and enters the courtroom, not in the company of an attorney but from a cell block in the

company of a marshal…he is often unable to retain his job and support his family, and is

made to suffer the public stigma of incarceration even though he may later be found not

guilty. The present problem of reform of existing bail procedures demands an immediate

solution.”22

The Bail Reform Act of 1966 and 1984:

Spurred on by recognition of growing deficiencies, the Bail Reform Act of 1966

addressed some of these concerns but not all. Preventive detention remained an issue as bail

reform remained unmoved.23 Specifically, the Act stated that the purpose is “…to revise the

practices relating to bail to assure that all persons, regardless of their financial status, shall not

needlessly be detained pending their appearance…”24 Then Congress enacted the Bail Reform

Act of 1984, which amended federal bail law to permit the use of preventive detention in

22 S.REPT. 89-750 at 6 (1965); see also H.REPT. 89-1541 at 8-9 (1966). 23 See 18 U.S.C. §3146-3151. 24 Ibid.

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instances where the accused posed a danger to the public.25 This Act identifies what a judge must

consider when determining conditions of pretrial release. The final ruling and current basic

structure of federal bail law is reflected in the 1984 Bail Reform Act, which compels courts to

order bail only to guarantee a defendant's appearance in court.

Federal Case Law:

The Supreme Court of the United States has historically been conflicted on the topic of

bail. In Stack v. Boyle (1951), the Supreme Court found that defendants’ Eighth Amendment

rights were violated when bail was set unusually high, despite a lack of evidence suggesting that

they would flee before the trial data.26 The Court held that a bail amount is excessive under the

Eighth Amendment if it is "higher than is reasonably calculated to ensure the defendant's

presence at trial."27 In short, high bail that serves to detain a defendant rather than to assure the

defendant’s appearance at trial, violates the Eighth Amendment prohibition of excessive bail.

Shortly thereafter, the Court held in Carlson v. Landon (1952) that “bail shall not be

excessive in those cases where it is proper to grant bail.”28 While this language echoes the Eighth

Amendment’s prohibition of excessive bail, it highlights the lack of legislation clearly defining

those classes of cases in which bail is allowed or disallowed. For instance, in criminal cases

where the prosecution may seek a death sentence, bail is not compulsory. The Court itself

indicates this, stating “…the very language of the Amendment fails to say all arrests must be

bailable”.29

25 See 18 U.S.C. §§ 3141–3150. 26 See Stack v. Boyle, 342 U.S. 1 (1951). 27 Ibid. 28 See Carlson v. Landon, 342 U.S. 524, (1952). 29 Ibid.

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After a period of time the U.S. Supreme Court held in United States v. Salerno (1987),

that denial of pretrial release does not violate the United States Constitution upon provision of

sufficient proof that a defendant poses a threat to public safety and that the legislation offended

neither the Eighth Amendment’s Excessive Bail Clause nor the Fifth Amendment’s Due Process

Clause.30 The Court stated the following:

“In our society liberty is the norm, and detention prior to trial or without trial is the

carefully limited exception. We hold that the provisions for pretrial detention in the Bail

Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the

detention prior to trial of arrestees charged with serious felonies who are found after an

adversary hearing to pose a threat to the safety of individuals or to the community which

no condition of release can dispel. The numerous procedural safeguards detailed above

must attend this adversary hearing…this congressional determination…violates either

the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eight

Amendment…We believe that when Congress has mandated detention on the basis of a

compelling interest other than prevention of flight, as it has here, the Eighth Amendment

does not require release on bail.”31

State of Florida Case Law:

Examining Florida legislation, in 1980 the Florida Supreme Court held in State v. Arthur

(1980), that (1) when a person accused of a capital offense or an offense punishable by life

imprisonment seeks release on bail, it is within the discretion of the court to grant or deny bail

30 See United States v. Salerno, 481 U.S. 739 (1987). 31 Ibid.

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when the proof of guilt is evident or the presumption great; and, (2) that before the court can

deny bail the state must have carried the burden of establishing that the proof of guilt is evident

or the presumption great.32 Article I of the Florida Constitution revised in 1968, provides the

foundation of legislation relating to the conditions of bail in the State of Florida. There have been

numerous recommendations to the state that this law be revised to reduce the monetary

component of bail. Specifically, a 1978 Law Review proposed that the bail provision of the

Florida Constitution be amended to eliminate the monetary component of bail and ensure First

Appearance with a less destructive and discriminatory method.33

Legislation Proposed by Congress:

Aside from precedent cases and federal and state case law, federal legislation has been

repeatedly proposed by Congress regarding eliminating or reforming the current condition of

bail. The federal bail statute, Supreme Court of the United States precedent cases and Florida law

set the guidelines and framework for the legality of bail. The final ruling and current basic

structure of federal bail law remains as the 1984 Bail Reform Act left it. That directive compels

courts to secure bail only to the extent that it will guarantee a defendant's appearance in court.

However, Congress has made several adjustments in the years since, most notably creating a

rebuttable presumption of flight and dangerousness.

These proposed adjustments include the bills: H.R.2395: Stop Predatory Bail Contracts

Act (2017), which “…requires the Federal Trade Commission (FTC) to limit the fee that bail

32 See State of Florida v. Danny W. Arthur, 390, (1980). 33 Bennett H. Brummer & Bruce S. Rogow, An End to Ransom: The Case for Amending the Bail

Provision of the Florida Constitution, 6 Fla. St. U. L. Rev. 775 (2014). Retrieved from

http://ir.law.fsu.edu/lr/vol6/iss3/9.

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bond agents or persons underwriting or insuring the provision of a bail bond may charge for an

ankle monitor or homing device that they require an accused individual to wear as a condition

on issuing a bond for his or her appearance in court.”34 H.R.1437: No Money Bail Act of 2017

(2017), which “…prohibits payment of money as a condition of pretrial release in any federal

criminal case.35 H.R.2152: Citizens' Right to Know Act of 2017 (2017), which “… requires a

state or local government that receives funds under a Department of Justice (DOJ) grant

program and uses such funds for a pretrial services program to annually report the amount of

funds received by the pretrial services program and certain information about participating

defendants. DOJ must publish the information. Additionally, DOJ must reduce the grant

allocation of a state or local government that fails to comply.”36 And H.R.4833 - Bail Fairness

Act of 2018 (2018), in which a “summary is in progress.”37 All four of these proposed bills

remain with no further action.

34 H.R.2395: Stop Predatory Bail Contracts Act, 115th Congress, introduced in House

(05/04/2017), with no further action. 35 H.R.1437: No Money Bail Act of 2017, 115th Congress, introduced in House (03/08/2017),

with no further action. 36 H.R.2152: Citizens' Right to Know Act of 2017, (115th Congress), introduced in House

(04/26/2017), with no further action. 37 H.R.4833 - Bail Fairness Act of 2018 (115th Congress), introduced in House (01/18/2018),

with no further action.

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Review of Literature

Within the past decade, discussion of reforming the United States criminal justice system

has become a popular topic. During this time, incarceration of prisoners has geometrically

increased and the bail industry has evolved into one of privatization. Specifically, the

privatization of prison and arrest procedures have caused several segments of society to raise

questions concerning the real motive behind imprisoning civilians. What has largely emerged is

the current system is based on status, wealth, race, and financial situation rather than justice.

Prisons and bail bondsman companies have coopted the hardships of arrestees into revenue and

profit.

One of the first major empirical studies addressing the effect of detention was the

Manhattan Bail Project conducted by the Vera Foundation in 1961.38 The study conducted

pretrial interviews and verifications designed to assess flight risk based on ties to the community.

They found that those detained were more likely to be found guilty and sentenced to prison than

those who were not detained.39 Additionally, in 1980, John Goldkamp, in a study focusing on

8,000 Philadelphia criminal cases, examined whether pretrial detention affected case outcomes at

three separate criminal process phases: “dismissal at the outset, entry into a diversion program,

and verdict.”40 Goldkamp controlled for six variables (charge seriousness; existence of warrants;

number of prior arrests; being supervised; existence of open cases; number of charges). He

surprisingly found that pretrial detention had little to no impact on any of these phases. He did

however find that it did have an influence on the likelihood of being sentenced to jail or prison.

38 Charles E. Ares, The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial

Parole, 38 N.Y.U.L. Rev. (1963). 39 Ibid. 40 John S. Goldkamp, The Effects of Detention on Judicial Decisions: A Closer Look, 5 Just. Sys.

J. (1980).

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Recent research has found that both legal factors, such as severity of the offense and prior

criminal record, when coupled with demographic factors such as race and age, exerted a strong

influence on bail decisions and outcomes. In 2015, authors Sacks, Sainato and Ackerman used an

original analysis and sample of 975 cases collected by New Jersey's Criminal Disposition

Commission, to examine judicial bail decisions and subsequent bail outcomes. They examined

whether the defendant could meet financial bail requirements to ensure release from jail had any

effect on the outcome of the case. The study found that black and hispanic defendants are more

likely than their white counterparts to pay a financial bail requirement. Further, minority

defendants are at a greater disadvantage when it comes to posting bail, and therefore much more

likely than their white counterparts to be held in pretrial detention.41

It is documented that those detained pretrial on average are convicted more frequently,

receive longer sentences, and subsequently commit more crimes than those who are not.

Specifically, one study done in March of 2017 focused in Harris County, Texas, used

quantitative methods to estimate the effect of detention by using a regression analysis that

controls for a wider range of cofounding variables than prior studies and a quasi-experimental

analysis related to case timing. The authors, Heaton, Mayson, and Stevenson found that pretrial

detention casually increases the likelihood of conviction, the likelihood of receiving a sentence

and the length of it, and the likelihood of future arrest for new crimes. However, this article only

focused on misdemeanor cases. They found that defendants who are detained on a misdemeanor

charge are more likely than similar situated releases to plead guilty and serve jail time and more

41 Meghan Sacks, Vincenzo Sainato, & Alissa Ackerman, Sentenced to Pretrial Detention: A

Study of Bail Decisions and Outcomes, American Journal of Criminal Justice, Vol. 40 Issue 3.

September 2015.

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likely to create future crimes.42 The article also attests that pretrial detention has an adverse

effect on case outcomes because the defendant may fearfully plead guilty, not effectively prepare

a defense, lack the funds for their defense, not demonstrate positive behavior, lack the advantage

of long delay, and no longer have an incentive for fighting a charge since their time in

detainment.43

While the national data on misdemeanors remains lacking, a 2010 analysis found that

most convictions in America are misdemeanors as these cases represent more than 3/4th of the

criminal caseload in state courts.44 A 2012 article found that misdemeanor convictions “result in

jail time, heavy fines, invasive probation requirements, and collateral consequences that include

deportation, loss of child custody, ineligibility for public services, and barriers to finding

employment and housing.”45 She also found that misdemeanor conviction limits a person’s

access to educational and social opportunities.

Pertaining to bail bondsman and bounty hunters, a review article by authors Baker,

Vaughn, and Topalli, addressed the legal environment surrounding bail bond agents and bounty

hunters, as well as the extra-legal violence and constitutional rights violations committed by

them. They examined state court decisions and the legality of arrests and bail bond agents

entering residences. They found that although bail agents and bounty hunters have been

42 Paul Heaton, Sandra Mayson, & Megan Stevenson, The Downstream Consequences of

Misdemeanor Pretrial Detention, Stanford L. Rev., (March 2017). 43 Ibid. 44 Robert C. LaFountain, Examing the Work of State Courts: An Analysis of 2008 State Court

Caseloads (2010). 45 Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, (2012).

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criticized in the past for exercising their extra-legal authority, state statutes and court cases have

allowed the bail bond system this amount of power and discretion.46

Additionally, since the early 2000s, numerous correlation studies have been published on

pretrial detention outcomes and the ineffectiveness of bail and discriminatory behavior of bail.

These cases have found that pretrial detention is correlated with unfavorable case outcomes for

defendants.47 Additionally, several nonprofit organizations, such as the Prison Policy Initiative

Vera Institute of Justice, The Marshall Project, American Civil Liberties Union, and Drug Policy

Alliance, just to list a few, have provided noble research to the field. However, these reports tend

to focus on larger cities, such as Chicago, New York, and Detroit, shading other southern cities.

This paper offers several contributions to the empirical literature on the Florida bail

industry and pretrial detainment in Alachua County, Florida. It offers a Document Analysis with

an extremely large and inclusive set of detailed controls and from the Alachua County Court

Services. This original dataset included every arrest made in Alachua County from January 1,

2016 to December 31, 2016, measuring the pretrial detention rates in the Alachua County Jail,

rate of bail offered by the judge, and how many arrestees could afford their bail.

Based on recent literature on the bail bond industry and pretrial detention trends, I expect

that my study focused on Alachua County, Florida for the year 2016 will show there are

individuals serving time in jail for the same exact crime someone else committed but are not in

jail because they could post bail, illuminating that there is a socio-economic disparity. I expect

there to be a racial, gender, and age disparity. Lastly, I trust that the results from my data focused

46 Shannon M. Baker, Michael S. Vaughn, Volkan Topalli, A review of the powers of bail bond

agents and bounty hunters: Exploring legalities and illegalities of quasi-criminal justice

officials, Aggression and Violent Behavior, ScienceDirect, 2008. 47 See Cail Kellough and Scot Wortley, Remand for Plea: Bail Decisions and Plea Bargaining as

Commensurate Decisions, Brit J. Criminology (2002).

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on Alachua County, Florida, will mirror the current state of the nation when it comes to pretrial

detentions and bail bonds.

Opposition to Bail Reform:

This paper acknowledges the opposing side that bail can be beneficial to society. Putting

a price on crime based on severity can discourage someone from fleeing and ensure public safety

if the arrestee is unable to afford their bail, most likely because the crime was hefty. But, the

reality of bail has seen poor defendants jailed for petty crimes for which they are unlikely to

attempt to flee, while allowing wealthier defendants to go regardless of the risk they pose to

public safety.

In a criminal justice review publication entitled “Nine Reasons to go Slow on Bail Bond

Reform,” the author explains the dangers of bail reform and uses empirical research to warn

about the potential adverse effects that can result from eliminating this system without studying

the possible impact of such action. He recommends that we should study the possible outcomes

of “…casually displacing and destroying the private bail bond industry.” While he acknowledges

that bail costs a substantial amount for taxpayers, he believes that the elimination of bail would

“make criminal courts even less efficient than they are now.”48

48 Virgil L. Williams, Nine Reasons to go Slow on Bail Bond Reform, Criminal Justice Review

(Sage Publications), May 1978, Vol. 3 Issue 1, p9-16, 8p (1978).

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Significance

Guilty Until Proven Innocent – Pretrial Detentions:

Far more Americans go to jail each year than to prison, although most of them have not

been convicted of any crime. Specifically, In the United States, approximately 780,000

individuals are incarcerated in local jails without any actual conviction.49 Although they may

eventually be found not guilty, these defendants still face the damaging effects of an often-

prolonged period of incarceration. While convicts are sent to prison to serve their sentences,

individuals may go to jail for short periods while awaiting a hearing or trial. Given the overall

bias against the marginalized, especially the poor, in the criminal justice system, institutional

changes are necessary. Some of these imperative changes can occur at the ground level – with

police, prison staff, and the lower judiciary.

Millions of prisoners throughout the United States are currently incarcerated due to an

inability to post bail. For example, in 2013, an analysis report done by Luminosity in Partnership

with the Drug Policy Alliance found that in New Jersey, 38.5 percent of the total inmate

population, had an option to post bail but were held in custody solely due to their inability to

meet the terms of bail. This means that the inmates were not serving a sentence, had no holds or

detainers, and could have been released if they could simply post bail in the form of cash or 10

percent bond.50 Defendants unable to pay the full amount of bail or a percentage of the bail to a

49 Thanithia Billings, Private Interest, Public Sphere: Eliminating the Use of Commercial Bail

Bondsmen in the Criminal Justice System, (Boston College, Law School, Boston College Law

Review, Newton Centre 57.4, 2016), 1337-1365. 50 Maria VanNostrand, Identifying Opportunities to Safely and Responsibly Reduce the Jail

Population, (Luminosity in Partnership with the Drug Policy Alliance, March 2013),

https://www.drugpolicy.org/sites/default/files/New_Jersey_Jail_Population_Analysis_March_20

13.pdf.

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bondsman or the court can spend weeks, months, and sometimes years detained while awaiting

their day in court. The inability to post bail can substantially impact the life of an arrested

individual, potentially resulting in loss of income and in some instances, the loss of jobs,

housing, and custody of children.

Most criminal defendants are unable to pay the full bail amount and must either stay in

jail or pay a 10 percent fee to secure a bond, which they will not regain even if found not guilty.

This often forces civilians to take a plea bargain if they do not have the money as they feel that is

their best option to avoid jail. Pretrial detention is problematic because it may encourage

innocent defendants to plead guilty, potentially creating widespread error in case adjudication.

Pretrial detainment has a disparate effect on minorities and on communities of color. The

workings of the current system preclude low income individuals from leaving jail before their

court date, regardless how petty or minor the offense was (i.e. loitering, possession of small

amount of marijuana). Forcing someone to remain in jail and endure the associated hardship

simply because they do not have $500 or $1,000 for bail serves no interest to the public. It is

unconstitutional under the Fourteenth Amendment of the United States to discriminate against

someone based on their financial status.51

Pretrial injustice takes many forms. A traffic stop or minor offense can result in long

periods of pretrial detention that threaten economic and family survival for defendants whose

indigence already made them unable to afford bail. Additionally, the most dangerous defendants,

51 Section 1 of the Fourteenth Amendment of the United States Constitution states: “All persons

born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.”

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those who may be released simply because they make bail, can threaten public safety. Jail

ostensibly is a place where potentially dangerous people that are a threat to society can be held

while their cases are dealt with, not as a detention center for minor offenders of low

socioeconomic status. A primary concern for prisoners is the prospect of spending years behind

bars without being convicted of any offence. For low income individuals accused of a crime, this

is the norm. For some offences, payment of bail releases the accused from legal custody pending

trial or investigation and is premised on the guarantee that they will submit to legal authority

during the investigation. Upon awaiting trial, the possibility of spending more time in jail than

one’s sentence would permit is a horrific reality that disproportionately affects low income

individuals.

Bail laws must be reformed in Alachua County, and the rest of the nation, to cease the

injustice towards financially disadvantaged individuals. Monetary bonds discriminate against

lower-income and minority individuals. The focus should be on making communities safe and

reforming the system that punishes individuals for an inability to pay. Pretrial bail decisions can

have adverse effects on defendants who are not released before trial. Defendants that cannot

afford their set bail continue to be unjustly detained. Research has shown that offenders who are

detained during pretrial proceedings are more likely to be convicted, are less likely to have their

charges reduced, and are likely to have longer sentences than those who were released before

trial.52 Pretrial detention also increases the likelihood that a defendant will plead guilty.53

52 Ibid., 1337-1365. 53 Ibid., 1337-1365.

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Cost:

An enormous amount of taxpayer money is spent to hold someone in jail when it could be

used for education or social services. A report published in Fiscal Year 2013 by the

Administrative Office of United States Courts found that supervision by pretrial services officers

cost significantly less than incarcerating individuals in the federal system.54 They found that:

“In 2012, the annual cost of placing an offender in a Bureau of Prisons institution or

federal residential reentry center was roughly eight times the cost of placing the same

offender under post-conviction supervision by a federal probation officer. Pretrial

detention for a defendant was nearly 10 times more expensive than the cost of supervision

of a defendant by a pretrial services officer in the federal system. Probation and pretrial

services officers focused the cuts on cases presenting the lowest relative risk and

preserved resources, as much as possible, to mitigate the risk of the remaining

defendants and offender.”55

TABLE 1

Cost of Detainment Vs. Supervision in the Federal System

Pretrial Services Daily Monthly Annually

Pretrial Detention $ 73.03 $ 2,221.22 $ 26,654.69

Supervision by Pretrial Services Officers $ 7.24 $ 220.29 $ 2,643.50

*Table borrowed from the Administrative Office of United States Courts (2013):

54Supervision Costs Significantly Less than Incarceration in the Federal System, (Administrative

Office of the United States Courts, July 18, 2013),

http://www.uscourts.gov/news/2013/07/18/supervision-costs-significantly-less-incarceration-

federal-system. 55 Ibid.

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An Effort for Bail Reform:

Despite reform from several groups such as the ACLU, the Prison Policy Initiative,

Congress, and even the Obama Administration who has spoken out about the broken criminal

justice system in America and how it must be reformed multiple times,56 the system remains as

stagnant as it was decades ago. Special interest groups, such as the American Legislative

Exchange Council (ALEC), national bail trade associations, such as the Professional Bail Agents

of the United States (PBUS) (The National Voice of The Bail Agent), and the bail bond industry,

such as the American Bail Coalition (ABC), aggressively oppose any reform efforts that aim to

lessen the role of money in the administration of bail. This combat to positive reform leaves

defendants of low socio-economic status spending weeks, months, and sometimes years detained

as they await their day in court simply because they are unable to afford a bail bondsman.

Jail Kills:

Maurice Page was found dead in his cell on September 21, 2017, in Alachua County Jail,

Florida. He was nineteen years old. Page was arrested in July after being accused of sexual

assault against a minor under twelve years old (Florida Statute §800.04).57 He was in custody for

two months with no bail. What is troubling about this tragedy, that may have been prevented,

was that the black, male, teen who committed suicide in his cell after only two months was not

offered bail for sexual offense against a minor although others were. Per my data, eight sexual

offenders against minors were awarded a bail amount by the judge in Alachua County. Yet, Page

56 See https://obamawhitehouse.archives.gov/node/352936. 57 See news articles: http://www.wcjb.com/content/news/Inmate-found-dead-at-Alachua-County-

Jail-445492923.html, http://www.alligator.org/news/article_c3d7faee-9d8a-11e7-9ac6-

1fe96433f66a.html, https://www.news4jax.com/news/inmate-found-dead-in-alachua-county-jail-

cell-report-says.

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was arrested with no bail and charged with sexual assault against a minor. Now I am not

concluding that the crime that Page committed is justifiable by any means, this is to strictly say

that eight other individuals who committed the same exact crime had a different fate. This

illuminates the systematic and institutional biases within the criminal justice system and

inconsistencies between judges and law enforcement.

Per the Bureau of Justice Statistics, 40 percent of jail deaths occur during the first week.58

The deaths of 28-year-old Sandra Bland, who was found hanged in a Texas jail cell three days

after being arrested during a traffic stop,59 26-year-old Jeffrey Pendleton, who died in a New

Hampshire jail cell which he was held for not being able to post a $100 bail,60 and Kalief

Browder, who was arrested at 16 years old and spent three years on Rikers Island, New York

without being convicted of a crime and with a mother who was unable to pay his bail amount,

could have been avoided.61 He was waiting for a trial that never happened. He was only a

teenager and primarily placed in solitary confinement, before committing suicide.62

58 Margaret E. Noonan, Mortality in Local Jails, 2000-2014 Statistical Tables, (U.S. Department

of Justice Bureau of Justice Statistics, December 2016),

https://www.bjs.gov/content/pub/pdf/mlj0014st.pdf. 59 See http://www.chicagotribune.com/news/local/breaking/ct-sandra-bland-trooper-

investigation-20170915-story.html, https://www.theatlantic.com/politics/archive/2015/07/sandra-

bland-waller-county-racism/398975/,

https://www.nytimes.com/interactive/2015/07/20/us/sandra-bland-arrest-death-videos-

maps.html, http://abc13.com/news/two-years-later-a-look-back-at-the-sandra-bland-

case/2211158/, https://www.thenation.com/article/what-happened-to-sandra-bland/,

https://www.cnn.com/2016/09/15/us/sandra-bland-wrongful-death-settlement/index.html. 60 See https://www.citylab.com/equity/2016/03/the-death-of-jeffrey-pendleton/475461/,

https://www.nytimes.com/2016/04/02/us/unable-to-pay-100-bail-homeless-man-dies-in-new-

hampshire-jail.html. 61 See https://www.citylab.com/equity/2017/02/what-jeff-sessions-can-learn-from-kalief-

browder/518130/, https://www.newyorker.com/news/news-desk/kalief-browder-1993-2015. 62 See http://www.gainesville.com/news/20140209/county-jail-suicides-prompt-questions-

changes.

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Maurice Page, Sandra Bland, Jeffrey Pendleton, and Kalief Browder are just some examples

of many who experienced immense hardship as a result of being detained. All young and all

unable to pay a bail fee that led to incarceration and ultimately their deaths. For those who can

pay their way to freedom, never sees those cement cells. This is not right. This is not how our

system should work. Despite the recorded inequalities of America’s bail system, and the

increasing pressure to change it from all sides of the spectrum, bail remains the norm in the

American legal system, allowing the bail bond industry to thrive.

Of course, there is the other side of the issue. The four examples I provided were of four

people who could not afford to pay their bail in one way or another. Those with sufficient means

can avoid pretrial detention, as did Jason Van Dyke, the Chicago police officer who fatally shot

17-year-old Laquan McDonald in October 2014. Van Dyke was released after posting 10 percent

of his one-million-dollar bond.63 He killed a teenager and did not spend a single night in a jail

cell. How is that just? The purpose of bail, when it was created years ago, was to keep potentially

dangerous people away from society and serve as an incentive for reappearance in court. The

current system for bail favors those who can pay for them and punishes those who cannot. Jason

Van Dyke committed a more serious crime than Maurice Page, Sandra Bland, Jeffrey Pendleton,

and Kalief Browder. Bail sells liberty to people who can afford it and hurts those who cannot. It

allows those who could be considered a threat to public safety away from jail where they can

continue to exist in society. More distressing, not affording bail can presumably force someone

into jail even if they are innocent, simply because they lack the funds.

63 Eric Bradach, Foxx: Bail bonds burden taxpayers, victimize poor people, University Wire,

Carlsbad, March 13, 2017. And see news article: http://www.chicagotribune.com/topic/crime-

law-justice/law-enforcement/jason-van-dyke-PEGPF00155-topic.html.

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General Statistics and Demographics of Alachua County

Alachua County Overview, Demographics, and Crime Rate:

Per the 2010 Census, Alachua County, Florida has a population of 247,336. The racial

makeup of the county was 172,156 (69.9 percent) White, 50,282 (20.3 percent) Black or African

American, 906 (0.3 percent) Native American, 13,235 (5.4 percent) Asian, 134 (0.1 percent)

Pacific Islander, 4,211 (1.7 percent) from other races, and 6,546 (2.6 percent) from two or more

races. 20,752 (8.4 percent) of the population were Hispanic or Latino of any race.64 Gainesville

is the county seat and the County is home to the University of Florida, where much of its

economy revolves around. Towns and Cities included in Alachua County are as follows:

Alachua, Archer, Earleton, Evinston, Gainesville, Hawthorne, High Springs, Island Grove, La

Crosse, Lochloosa, Micanopy, Newberry, and Waldo.

A 2016 report by the Florida Department of Law Enforcement on crime in Alachua

County, Florida, recorded that a total of 10,590 arrests were made in 2016.65 The report also

provided that only 832 of those arrests were classified as a violent offense arrest, 1,849 as

property offense arrests, and 7,909 as part II offense arrests.66

Alachua County Jail:

Currently, the Alachua County Jail is owned by the Alachua County Sheriff’s Office. The

jail’s ownership changes every decade. On January 18, 1998, the Alachua County Sheriff Office

(ACSO) Department of the Jail became a reality when the Alachua County Board of County

64 See https://www.census.gov/2010census/popmap/ipmtext.php?fl=12. 65 See http://www.fdle.state.fl.us/FSAC/County-Profiles/Alachua.aspx. 66 Ibid.

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Commissioners transferred the responsibility of the County Jail from Alachua County Court

Services to the ACSO.

The Department of the Jail is a 1,148 bed, 314,000 square foot facility which incarcerates

adult male and female offenders for up to one year. The core facility was completed in January

1994. In 2007, two renovations were completed which added 60 additional beds to the facility,

raising the number of beds to 980; and, with a classification factor of 15 percent, the optimal

number of inmates to be housed was 833. In August 2009, an additional 168 beds were added,

increasing the total number of beds to 1,148; and, after a classification factor of 15 percent, the

optimum number of inmates that can be housed is 975.67 The daily population counts of the

Alachua County jail in December of 2016 as recorded by the Sheriff’s Office averaged around

746 people per day, 713 of which were in the main facility, and 33 of which were on work

release.68

Alachua County Court Services:

Alachua County Court Services (ACCS), located in downtown Gainesville, as stated in

their mission, serves:

To reduce the need for incarceration by rendering timely and accurate information to the

Court while providing a continuum of cost-effective, community-based supervision and

therapeutic services to the citizens of Alachua County with emphasis on accountability

and preserving public safety.69

67 See http://www.alachuasheriff.org/jail/overview.html.. 68 See “All 2016 Daily Population Counts” (MS Excel), Jail Inmate Statistics,

http://www.alachuasheriff.org/jail/overview.html. 69 Court Services Mission found on the ACCS main website:

http://www.alachuacounty.us/Depts/CourtServices/Pages/CourtServices.aspx

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ACCS gives recommendations to the judge on deciding the amount of the bail to set for the

civilian charged and there is a 98 percent chance the judge will take what ACCS recommends.70

Alachua County is fortunate to be one of the counties with a court services program because it

gives defendants in Alachua County an opportunity for a fairer chance at justice, since a Risk

Assessment is conducted for everyone on a case by case basis. ACCS runs risk assessments

based on the individual’s criminal history, employment, pending charges, residence, substance

abuse, history of failure to appear, and other factors to give the judge information and a

recommendation to make an informed bail decision.

Florida Pretrial Risk Assessment Instrument Adopted by the ACCS:

The Florida Pretrial Risk Assessment Instrument, created by James Austin, Avi Bhati,

Michael Jones, and Roger Ocker, is a rubric to assist judicial officers in determining a

“defendant’s risk to danger to the community” and “non-appearance in court”.71 This rubric

includes carefully selected “potential predictor variables” that have relationships with pretrial

misconduct and failure to appear. Per the report, eleven factors were identified as having an

independent effect on predicting pretrial misconduct: (1) Age at admission, (2) current most

serious charge, (3) is current charge 907.041, (4) employment status at admission, (5) marital

status, (6) have a telephone/cell phone, (7) time at current residence, (8) history of sub abuse

and/or mental health, (9) previous FTAs, and (10) previous adult felonies, previous adult

misdemeanors.72 Judges and Court Services can then use this rubric to assess whether someone is

70 Interview from ACCS’s Senior Data Analyst, Chris Carusone, on November 30, 2017. 71 See https://www.pretrial.org/download/risk-assessment/FL percent20Pretrial percent20Risk

percent20Assessment percent20Report percent20(2012).pdf 72 Ibid.

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a “low risk category, low moderate category, moderate category, high moderate category, or

incomplete assessment” as defined in the rubric.73

Judgement:

While judges consider several factors — including financial stability, criminal history

and the charges levied — in setting bail amounts, the result can vary widely as the statutes

establishing pretrial release defer largely to judges’ discretion.74 More people are spending time

in jail because judges are more frequently demanding bail from defendants awaiting trial. It is

known for newer judges to often start tough in hope of establishing his or her mark and often

over-bail regardless of what pretrial court services recommends. Additionally, bail hearings are

typically just a few minutes long, often conducted over videoconference as observed during the

criminal court First Appearance in Alachua County. Judges may even spend less than one minute

during the First Appearance to determine whether a bail will be set or not, and if so, how much.75

Additionally, by using research examining the effects of counsel, public defender versus

retained, on bail decisions in Florida, one study found that appointed defense counsel struggles to

provide effective assistance, especially regarding case outcomes (conviction, sentencing, bail

amount set). The author finds that having appointed counsel versus private counsel negatively

affects case outcomes and are more likely to be convicted and/or sentenced to longer

incarceration terms.76

73 See Appendix B for Rubric. 74 See http://www.gainesville.com/news/20120909/bond-amounts-vary-widely-with-2-judges. 75 Observed in Alachua County Criminal Court First Appearance. 76 Marian R Williams. The Effect of Attorney Type on Bail Decisions. Criminal Justice Policy

Review. December 22, 2014.

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Materials and Methods; Research Design and Data Method

Overview:

The basic design of this study is a document analysis. The empirical observations made

are from utilizing written record collected from the Alachua County Court Services (ACCS). The

“ACCS Dataset,” which I will use to refer to the data obtained included every arrest made in

Alachua County from January 1, 2016 to December 31, 2016. The data was collected from the

Senior Data Analyst, Chris Carusone, at ACCS.

The data measured the pretrial detention rates in the Alachua County Jail. This dataset

included a total of 22,092 recorded charges made in 2016 in Alachua County total. However,

only 8,419 people were arrested. This is because some people were arrested multiple times or

had multiple charges with each arrest. In 2016, in Alachua County, a little less than half of those

charged with a crime were given the option to bond out. The total number of bonds that were

granted by the judge was 9,552, which makes up 43.24 percent of the charges. It is important to

note that most crimes are underreported or not logged into the system so the data is not

completely wholesome.

Alachua County Court Services Dataset – 2016 Arrests Alachua County:

The two staff members that I was in main contact with were Lanard Perry, the supervisor

of the risk assessment program, and Chris Carusone, the Senior Data Analyst for ACCS. They

were very helpful in providing me data points for this thesis. The data items collected were as

follows:

1. Race, described as Asian, Black, Hispanic, White, or Other.

2. Sex, described as Male or Female.

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3. Age, ranging from 15 to 89.

4. Days served in jail, ranging from 0 to 650.

5. Agency of arrest, either APD (Alachua Police Department), ASO (Alachua County

Sheriff Office), DEA (U.S. Drug Enforcement Administration), DOJ (U.S.

Department of Justice), FHP (Florida Highway Patrol), FWC (Florida Fish and

Wildlife Conservation), GCSO (Gilchrist County Sheriff's Office), GPD (Gainesville

Police Department), HPD (Hawthorne Police Department), HSPD (High Springs

Police Department), LCSO (La Crosse Sheriff Office), PAP (unknown), SFPD (Santa

Fe College Police Department), UPD (University of Florida Police Department), or

USM (U.S. Marshals).

6. Whether a public defender was assigned, described as true or false.

7. The FL statute the defendant is charged with.

8. The FL statute description.

9. The level of the crime (ACL), described as misdemeanor, felony, or non-

criminal/civil.

10. The degree of the crime (ACD), first, second, third, or sexual child assault).

11. If the civilian bonded out or not, described as true or false.

12. Initial bond charge amount by law enforcement, ranging from $0 to $3,000,000.

13. If the judge granted the defendant a bond, true or false.

14. The amount of the judge’s bond, ranging from $0 to $3,500,000.

15. The status description, described as civil action, criminal traffic, felon-awaiting

sentence, felon-awaiting trial, felon-violation of probation, in-transit, misdemeanor-

awaiting sentence, misdemeanor-awaiting trial, misdemeanor-violation of probation,

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other, other jurisdictions, parole violation, sentenced felon -364, sentenced felon

+365, or sentenced misdemeanor -364.

In terms of the data collected, an excel sheet was initially constructed that contained a

total of 22,092 recorded charges. To analyze the data collected, a regression test was ran that

controls for a wide range of variables. The data points were then narrowed down and controlled

for the following variables: those who were arrested, charged, served at least one or more nights

in jail, granted a bond amount of anything over $0 by the judge, and awaiting their trial. This

group contained a total of 2,000 different individuals which serves as the sample for this study. I

will refer to this sample as “Individuals Detained Pretrial and Unable to Post Bail in ACJ, 2016”

for the remainder of the paper. After transferring that information into STATA, a statistical data

analysis software, I found that out of the 2,000 individuals, 1,562 were male (78.10 percent) and

438 were female (21.90 percent) and 1,098 were black (54.90 percent) and 902 (45.10 percent)

were white/not black. It is important to note that the race identifiers are not completely accurate.

When law enforcement officers make arrests, they often misinterpret and generalize the race of

the individual being arrested.

Data Analysis of Alachua County Jail Bookings for 2016:

In summary, per the data collected from ACCS, my findings showed that 43.24 percent

of every individual arrested in Alachua County in 2016 during the term of the data acquired and

examined were granted the possibility to post bail, leaving 56.76 percent incarcerated and

awaiting trial. And, out of those awaiting trial, 18.45 percent spent more than one night in jail

because they could not post bail. This means that these 18.45 percent of inmates were being

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detained even though they were not serving a sentence because they were unable to post bail

themselves or in the form of 10 percent option with support from a bail bondsman.

Additionally, 361 of the detainees at the Alachua County Jail in 2016 were nonviolent

offenders who were unable to post a bond of $1,000 or less. The data was purposefully narrowed

to focus on those who were arrested, charged with a felony or misdemeanor, served at least one

or more nights in jail, were granted a bond amount of over $0 by the judge, and were awaiting

trial. This select group was comprised of 2,000 different individuals, 78.10 percent (1,562) of

which are male, 21.90 percent (438) of which are female, 54.90 percent (1,098) of which are

Black, and 45.10 percent (902) of which are White/Not Black, which the study essentially

concentrates on. The breakdown of these individuals is expressed in the following tables:

FIGURE 1

Age Breakdown of Individuals Detained Pretrial Unable to Post Bail in ACJ, 2016

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TABLE 2

Race and Gender of Individuals Detained Pretrial Unable to Post Bail in ACJ, 2016

Race Female Male Total

Asian 1 4 5

Black 207 891 1,098

Hispanic 0 6 6

Other 0 3 3

White 230 658 888

Total 438 1,562 2,000

TABLE 3

Category of the Crime of Individuals Detained Pretrial Unable to Post Bail in ACJ, 2016

ACL Frequency Percent

Felony 1,024 51.30

Misdemeanor 772 38.68

Non-Criminal / Civil 204 13.02

Total 2,000 100.00

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Summary of Findings; Results and Discussion

Hypotheses Tested:

My results found the following hypotheses to be true:

1. Utilization of bail and private bail companies disproportionately discriminates

against the poor on the basis of wealth/affordability, in comparison to the rich.

2. Gender impacts decisions to grant bail or to release defendants before trial.

3. A pure monetary bail system preys on the economically down-trodden, and

needs to be eliminated and replaced with a more egalitarian method to insure

presence at trial.

4. Age of accused may impact decisions to grant bail and/or to release

defendants before trial.

However, the following hypothesis was found to be false:

5. Race and ethnicity factors disproportionally affect judicial decisions to grant

bail and/or to release defendants before trial.

Results:

Based on the data collected and tests ran, four of my hypotheses were proven true. This

dataset of 2,000 individuals in the Alachua County court system proved that race and ethnicity

does not affect decisions to grant bail and to release defendants before trial. It was nearly

identical for black and non-black. Surprisingly, the racial disparity is not significant enough

regarding bail for defendants of Alachua County at least. This is a positive thing to find, however

it is important to note that recording ethnicity and race is often mistaken as law enforcements’

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perception may be imprecise. However, gender did appear to influence decisions to grant bail

and to release defendants before trial.

The average amount of days served in the Alachua County Jail in 2016 from the sample

gathered was 18.62, with a standard deviation of approximately 39.40. The sample furthermore

shows that the higher the amount of the bail, the longer the amount of time spent in jail. This is

expected as heftier crimes earn more time in jail and require a higher bail amount. Roughly 48

percent (47.95 percent to be exact) of people arrested spent longer than three nights in jail. I used

the term “Longstay” to describe arrestees who spent longer than three nights in jail as shown in

Table 5.

TABLE 4

Summary of Days Served

Variable Observed Mean Standard Deviation Min Max

Days served 2,000 18.6195 39.40424 0 592

TABLE 5

Days Served in Jail > 3 Days (“Longstay”)

Longstay Frequency Percent

Less than 3 days 1,041 52.05

Greater than 3 days 959 47.95

Total 2,000 100.00

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The regression tables illustrated a gender difference between who gets arrested and who

was offered the option to post bail and get out. The hypothesis that utilizing private bail bond

companies disproportionately discriminates against the poor based on wealth/affordability, in

comparison to the rich, is proven true because a significant number of people in jail are awaiting

their trial and not actually convicted.

TABLE 6

Logistic Regression of Length of Stay, Bond Judge, Gender, Race, Misdemeanor, Felony

Longstay Coefficient Standard

Error

z P>|z| [95 percent Conf.

Interval]

Bond Judge .0000195 2.36e-06 8.25 0.000 .0000148 .0000241

Female -.3158308 .1138213 -2.77 0.006 -.5389164 -.0927451

Black .0180468 .0942647 0.19 0.848 -.1667086 .2028022

Felony .2702035 .1671991 1.62 0.106 -.0575006 .5979077

Misdemeanor .8850005 .168709 5.25 0.000 .5543369 1.215664

_cons -.8763078 .1653737 -5.30 0.000 -1.200434 -.5521812

***Number of observations: 2,000

***p-value (Prob > chi2) = 0.0000

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TABLE 7

Regression Table

***Number of observations = 2,000

***R-squared = 0.0580

Days Served Coefficient Standard Error t P>|t| [95 percent Conf.

Interval]

Bond Judge .0000724 7.67e-06 9.45 0.000 .0000574 .0000875

Female -4.99935 2.08144 -2.40 0.016 -9.081375 -.9173256

Black 2.720654 1.729945 1.57 0.116 -.6720365 6.113344

Felony 11.2264 2.943973 3.81 0.000 5.452817 16.99999

Misdemeanor 8.392987 3.015621 2.78 0.005 2.478888 14.30709

_cons 7.373982 2.892655 2.55 0.011 1.701039 13.04692

Of particular interest was the fact that out of all the arrests made in Alachua County in

2016, 762 individuals (9.05 percent) did not spend a single night in jail because they could afford

the bail amount, in one way or another, set by the judge. The amount of bail set ranged from $20

to $190,000. It is disconcerting to know that people who commit crimes that yield such high

bails, such as $190,000, can simply pay the bail and be free in society until their trial, where they

can presumably continue to commit the same crime or worse. I then filtered these 762

individuals by those who had a bail set of greater than or equal to $15,000. This yielded 86

individuals. A closer look at these 86 individuals revealed surprising results. First, exactly 43

were black and the other 43 were white/other. This indicates again that, within Alachua County,

race is not a significant factor in determining whether a high bail is set. The ages ranged from 18

to 64 while 71 were male and 15 were female. The crimes of these 86 individuals varied

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immensely, from DUI and cocaine possession (minor), to domestic battery by strangulation, use

of a deadly weapon, grand theft, written sent threat to kill or injure, exploitation of elderly 10k

dollars to und 50k dollars and sexual battery of victim under 12 yoa.77 While these crimes harm

others and society, they are not the absolute worst crimes committed in Alachua County in 2016.

Keep in mind that these were the worst crimes that were awarded an option to bail, serious

felonies and high degree crimes (i.e. murder) receive no option to bail and go straight to jail.

It is alarming to discover that an adult who commits sexual battery towards someone

under twelve years of age does not have to spend one night in jail, yet someone who committed a

petty crime such as driving with a suspended license serves time in jail. Clearly, there is

something defective with the criminal justice system and bail system when that happens.

Additionally, when comparing the same or similar crimes in Alachua County, it was discovered

that there were several individuals who were charged with cocaine possession or DUI that did

have to spend time in jail. This disparity appears to result from wealth, not justice.

77 Charges included: DUI of alcohol or drugs (316.193.1 f.s.), possess cocaine (893.13.6a f.s.),

touch or strike (784.03 1a1 f.s.), person uses a deadly weapon (784.045.1a2 f.s.), grand theft 300

less than 5k dollars (812.014.2c1 f.s.), ordered ammo by convicted Florida felon (790.23.1a f.s.),

written sent threat to kill or injure (836.10 f.s.), control substance without prescription

(893.13.6a f.s.), with intent to sell or deliver schedule I (893.13.1a2 f.s.) obstruct with violence…

…(843.01 f.s.), false rept. bomb arson weapon mass destruction of public property (790.164.1

f.s.), by 18 yoa older sex battery victim under 12 yoa (794.011.2a f.s.), with intent to commit a

felony (784.021.1b f.s.), by 24 yoa older sex batt victim 16 or 17 yoa (794.05.1 f.s.), commit

domestic battery by strangulation (784.041.2a), sex bat 12 yr. less 18 yr. by person 18 year or

old (794.011.4a f.s.), with assault or battery (with assault or battery), violation of condition of

pretrial release (903.0471 f.s.), grand theft 5k less than 10k dollars (812.014.2c2 f.s.), sales tax

fail remit 20k und 100k dollars (212.15.2c f.s.), purchase schedule II (893.13.2a1 f.s.), sex bat 18

year or older by person 18 year or old (893.13.2a1 f.s.), disorder intoxication public place cause

disturbance (856.011 f.s.), exploitation of elderly 10k dollars to und 50k dollars (825.103.3b

f.s.), false owner info pawned items 300 dollars or more (539.001.8b8b f.s.), not more than 20

grams (893.13.6b f.s.), follow harass cyberstalk another (784.048.2 f.s.).

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Additionally, as it is expected, there is a correlation between the bail amount set by the

judge and the chance that the defendant may pay the fee. The data found that the higher the bail

amount, the less likely an individual could pay their bail fee as shown in Table 8.

TABLE 8

Inmates Held on Bail Only by the Amount and Whether They Posted Bail or Not

Bail Amount Set by

Judge

Number of

Individuals

Amount That

Did Not Pay

Percent

Unable to Pay

Less than $100 130 23 17.69

$101 - $500 429 61 14.22

$501 - 1,000 164 58 35.37

$1,001 - 5,000 915 624 68.20

$5,001 - 10,000 464 392 84.48

10,001 - 20,000 400 369 92.25

20,001 - 50,000 381 347 91.11

50,001 - 100,000 118 104 88.14

100,001 - 1,000,000 82 77 93.90

1,000,001 - 3,500,000 4 4 100.00

Some results were analyzed to focus on those who received a small amount of bail or less

than $100. This yielded 130 different people. Out of these 130, only 58 of those people did not

serve a single night in jail; 72 people spent one or more days. However, looking at the data

closer, 17 people spent 8 or more nights in jail which is a significant amount of time and enough

to be devastating to their life, all because they could not post bail of $100 or less. What was

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significantly alarming to find is that a black male that was 19 years old spent 74 nights in jail

because he could not post a $50 bail, and a black male that was 60 years old spent 138 nights in

jail because he could not post bail of $100.

Upon example of viewing my data from the larger dataset, not the narrowed one with

2,000 data points, I found that there are inconsistencies with the bond amount offered by the cop,

if any, then by the judge and vice versa. This study found that 425 individuals were offered a bail

bond by the law enforcement officer, with the judge subsequently dismissing the bail bond. The

charge amounts ranged from $100 (for the crime §872.06) to $250,000 (for the crime

§812.135.2a). This can be for one of two reasons. For one, the judge may have thought that a

bond amount was not necessary because the defendant did not pose a threat to society and had no

to low flight risk. However, the judge may have thought that the crime was too hefty to even be

offered the chance to post bail. When looking at the amount of times the judge offered a bond

that the cop initially did not, the study found that there were 819 instances, ranging from $100 to

$1,000,000, that it occurred.

Out of everyone arrested in Alachua County in 2016, 56.57 percent (4,763/8,419) are

awaiting trial. Out of those awaiting trial, 18.45 percent (879/4,763) spent more than one night in

jail because they could not post bail. That is 879 people that spent time in jail before they have

been found guilty for the alleged crime they committed, simply because they lacked the funds to

post bail. This value of pretrial detention rates is concerning. Jail has become a modern day

“debtor prison.”78 The Sixth Amendment of the United States Constitution grants all individuals

the right to a fair and speedy trial. However, people spend over a year in jail waiting for their

78 See https://www.aclu.org/issues/criminal-law-reform/sentencing/ending-modern-day-debtors-

prisons.

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trial date. The system works deliberately slow, taking its time, while time is taken away from the

individual that cannot post bail. When the individual is found not guilty yet had to unjustly

remain in jail, their life has deteriorated. While bail does serve a purpose, and has some positive

aspects, they unfortunately do not provide justice to those who cannot afford them.

Limitations:

It is important to note that the race identifiers are not completely accurate. When law

enforcement officers make arrests, they often misinterpret and generalize the race of the

individual being arrested. The data collected yielded 54.90 percent (1,098) Black individuals and

45.10 percent (902) “White/Not Black” individuals. Out of the 2,000 points, only 14 were

described and recorded as “Asian, Hispanic, or Other, which is not significant enough to label in

their own racial and ethnic categories. Racial and ethnic demographics are recorded as primarily

white or black by law enforcement officers because that is what they determine through

observation upon arrest. Additionally, in the data set granted by Court Services, only two

genders, male and female, were used as descriptors for the data points. However, this paper

acknowledges that people identify in more than two gender categories.

It is also important to note that the initial bond charge amount and the judge bond charge

amount are different. In many cases, the judge will take the bond that may have been initially

given by law enforcement away or raise the bond because they feel the degree of the crime was

too high and they should go straight to jail or they believe that the person arrested did not need a

bond in the first place because there is no or low risk of flight.

Finally, it is important to note that most crimes are underreported or not logged into the

system so the data is not completely wholesome. This is not just a problem that Alachua County,

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Florida faces, but a problem that the rest of the country faces. Due to the amount of labor and

time it would require for law enforcement to respond to every crime report, not every crime is

reported. Additionally, for crimes where the criminal was not caught by law enforcement, some

victims do not report what happened to them out of embarrassment or lack of reliance in the

system.

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Forthcoming Studies

A potential future study is needed to review how many of those awaiting their trial were

found guilty or not. Not all who are arrested are guilty, but if they do not have the means to post

bail, they will still have to suffer the consequences of remaining locked up. It would be

interesting to analyze this data. Additionally, a future query should include a review of those

accused who will still make an appearance to their court date if the monetary component of bail

is eliminated. Such a test could determine if eliminating the financial expense of bail would be

more beneficial towards ensuring first appearance and compliance. These subsequent hypotheses

would be noteworthy to test and enrich the field of study:

1. Age of victim may impact decisions to grant bail and/or to release defendants before trial.

2. A growing portion of inmates awaiting trial on bail, may not be convicted.

3. Some of those awaiting trial in jail are never found guilty but still suffer the

consequences of remaining locked up.

4. Whether those accused will still show up to First Appearance if the monetary component

of bail is eliminated? Eliminating the financial expense of bail would be more beneficial

toward ensuring first appearance and compliance.

It would be very beneficial to test these hypotheses because knowing whether the current system

is detaining people that subsequently are found not guilty, immense hardship and consequence to

the defendant can be avoided. Additionally, research regarding the likelihood of a better method

than monetary funds would benefit society by allowing for a more inclusive and

nondiscriminatory method.

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Conclusion

The American system of bail, as illustrated by analyzing Alachua County, where 18.45

percent of people in the jail have not been convicted of a crime but just cannot afford bail, is

fundamentally incapable of doing the job that is expected of it. Those with money, regardless of

their potential danger to the community, can purchase freedom while underprivileged defendants

must remain in jail awaiting trial. Since even a few days in jail can mean a loss of a job for a

low-wage worker, jails can have the effect of forcing the poor further into poverty, without

contributing to public safety. Jail endangers employment, interferes with schooling, affects

ability to obtain housing, affects family, and strips away the right to vote.79 Spending time in jail

has immense detrimental effect on one’s life. Additionally, if found not guilty for the alleged

crime, that time can never be regained.

Bail bond agencies scatter across neighborhoods, already rife with poverty and mass

incarceration, with the agenda of profiting off someone’s liberty. Having to post a bond or come

up with the bail money themselves can disrupt a person’s education, future job prospects, and

more. Like the privatization of jails, bail leads to both mass incarceration and social deprivation.

If courts released people who are not deemed any real safety threat, prison overcrowding would

be alleviated and communities would be safer and freer, as would our legal institutions.

And although it is proven that it is far costlier to detain an individual than use other

pretrial services, this should not be about money. This is about granting every individual a fair

and equal chance at liberty. Inability to post bail should not be the sole determinant of a

defendant's pre-trial detainment. Bail must be set only to the extent that it assures the

79 Max Ehrenfreund. How bail punishes the poor for their poverty. WP Company LLC d/b/a The

Washington Post. Feb 13, 2015.

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reappearance of a defendant in court as stated in legislation. This is achievable through

elimination of commercial bail bondsmen and establishment of pretrial service agencies that

focus bail decisions around non-monetary release methods. Private interests and a defendant’s

socioeconomic status should play no role in trial outcomes in an equitable criminal justice

system. Reforms must be made to ensure equal treatment of all individuals accused of a crime,

and provide the accused with the rights and liberties they are guaranteed as citizens of the United

States.

While this paper acknowledges the opposing side that bail can discourage someone from

fleeing which can have overall positive results, the reality is seeing poor defendants jailed for

petty crimes for which they are unlikely to attempt to flee, while allowing wealthier defendants

to go regardless of the risk they pose to public safety. When money becomes the primary factor

that determines pretrial detention, the system must be looked at with skepticism as people of low

socio-economic status are disadvantaged. The system must be reformed and it can start with

counties and states establishing and maintaining pretrial services agencies that aid courts in

making bail determinations.

Fortunately, there has been reform to the biased system as of recent. Current initiatives

that are happening around the country include:

1. The American Bar Association who is urging governments to adopt policies that

favor release on recognizance, advocating pretrial detention should not occur solely

on the ability to pay (Resolution 112C, 2017).

2. Washington, DC, where, in the last 25 years, bail reform here has been very

successful. In DC, bail is only used if one needs to be detained for public safety

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reasons but is rarely used. DC saves an estimated $398 million annually by using

careful supervision methods.

3. Chicago, where the city has reduced the use of bail and put other reforms into place.

4. New Jersey, where recent reform efforts include eliminating cash bail.

5. Kentucky and Oregon, where they do not have bail bondsmen.

Local initiatives are also happening and include:

1. GNV4ALL, who recently put a bail reform sub-committee together.

2. Community Bail Funds, which is used in Brooklyn, Bronx, Manhattan, Seattle,

Memphis, Nashville, Chicago, Baltimore, Massachusetts, Connecticut.

3. Pretrial Justice Institute, where they have a 3 Days Count Initiative: three prong

approach, one of which is replacing discriminatory money bail with practical, risk

based decision making.

4. Escambia County, FL, where Unity in the Family Ministry, Inc. assists indigent

defendants in posting bail for mostly misdemeanors ($1000 bond or less), providing

services and programming as a condition of release. Escambia County proposed

reforms include reliance on county's pretrial services in lieu of monetary bail,

requiring the state to provide justification whenever bail is set above a defendant's

means and promptly hearing motions to modify bail. They also permit unsecured

appearance bonds, eliminating the need for collateral such as a house or retirement

savings, making bond more accessible to the poor.

Yet, despite the constant push for bail reform, the outdated and ineffective system is still

in play. Our country must move towards more progressive terms and develop a uniform method

that does not see rich or poor, and only sees what is just or not. Cities and states all over the

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country are calling for bail reform. Alachua County should be one of them. Recently, there has

been discussion by the Gainesville City Commissioners for an initiative on providing bond

assistance funds for low risk detainees to post bail.

On March 27, 2018, the Alachua County Board of County Commissioners discussed in

their 9:00 AM meeting the possibility of a “Low and Moderate Risk Bail Bonds Pilot Program

for Alachua County.”80 The presentation was given by Assistant County Manager Carl Smart and

Assistant Director of Court Services Lanard Perry to outline a low and moderate risk bail bonds

pilot program for Alachua County. The County discussed this potential new policy. While it was

stated that the cost of such program could reach $7,545, that is far less than the cost of

detainment in all. The handout provided by Smart included the following background:

There is significant interest among criminal justice policymakers and those who advocate

for addressing socioeconomic disparities in opportunities to reform the existing bail bond

system at the national level. Those defendants who are poor can be unable to afford cash

bail requirements are often in jail for weeks for a minor crime yet those with more

financial resources and commit more serious crimes can pay cash bond and stay at

home. Developments in reforming bail bond systems are happening through states such

as New Jersey which has established a unique risk-assessment based tool for bail

decisions and fully revised their previous bail system (nearly eliminating cash bail) after

significant review and research. Federal legislation in many cases on a bipartisan basis

has been introduced to reform the existing system. Locally, there is also strong interest in

examining the County's criminal justice system's approach to bail bonds. The Gainesville

80 Court Services Presentation. Community Bail Bond Program, Low & Moderate Risk. March

27, 2018. http://alachuacofl.civicclerk.com/Web/GenFile.aspx?ad=9376.

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4ALL initiative has paid significant attention to local needs and promising opportunities

through the nation which are being used to establish bail bond reform. Also, the Alachua

County League of Women Voters has suggested a pilot program on bail bonds to the

BoCC which asked Court Services to explore the potential for such a program. The

presentation follows through on this request following considerable research, and

outlines steps for how a pilot program focusing on low and moderate risk offenders' bail

could be developed through system collaboration coupled with targeted changes.81

The possibility of such initiative is great news for Alachua County. The recommendation

suggests: “The League of Women Voters recommended seeking a collaborative effort to help

start, fund and sustain a community bail fund program; Establish a fund to post bail for indigent

pretrial defendants with bail of $2000 or less in lieu of incarceration; The fund would assist only

“low” or “moderate” risk defendants per the Florida Pretrial Risk Assessment Tool; Reduces jail

population; Potentially better client outcomes as being out of jail gives opportunity to maintain

employment, housing, treatment, and access to legal representation; Reducing the number of

days in jail results in a more efficient use of County money.”82

Representatives from Court Services met with Chief Judge Monaco and Paul Silverman,

Judge Ferrero, Judge Jaworski, Public Defender Stacey Scott, and State Attorney Bill Cervone to

explore this concept. Commissioner Byerly, Assistant Director of Court Services Perry, County

Manager Michele Lieberman, Assistant Director of Court Services Perry, Commissioner Byerly

and County Manager Lieberman presented comments. While some concerns were expressed, it is

81 Carl Smart, Low and Moderate Risk Bail Bonds Pilot Program for Alachua County

Presentation. Agenda Item #6. BoCC. March 27, 2018.

http://alachuacofl.civicclerk.com/Web/GenFile.aspx?ar=1726. 82 Ibid.

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with great hope that Alachua County progresses into a program that has already been proven

successful in other parts of the country.

This joint effort to begin a pilot project to provide bail sources and bond assistance for

low risk detainees is virtuous to say the least. After conducting empirical research with a large

sample regarding 2016 arrestees in Alachua County and viewing the results, this paper

recommends that Alachua County adopt this initiative set forth by the Alachua County Board of

County Commissioners.

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Appendix A: All Tables and Figures

FIGURE 1

Age Breakdown of Individuals Detained Pretrial Unable to Post Bail in ACJ, 2016

TABLE 1

Cost of Detainment Vs. Supervision in the Federal System

Pretrial Services Daily Monthly Annually

Pretrial Detention $ 73.03 $ 2,221.22 $ 26,654.69

Supervision by Pretrial Services Officers $ 7.24 $ 220.29 $ 2,643.50

*Table borrowed from the Administrative Office of United States Courts (2013):

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TABLE 2

Race and Gender of Individuals Detained Pretrial Unable to Post Bail in ACJ, 2016

Race Female Male Total

Asian 1 4 5

Black 207 891 1,098

Hispanic 0 6 6

Other 0 3 3

White 230 658 888

Total 438 1,562 2,000

TABLE 3

Category of the Crime of Individuals Detained Pretrial Unable to Post Bail in ACJ, 2016

ACL Frequency Percent

Felony 1,024 51.30

Misdemeanor 772 38.68

Non-Criminal / Civil 204 13.02

Total 2,000 100.00

TABLE 4

Summary of Days Served

Variable Observed Mean Standard Deviation Min Max

Days served 2,000 18.6195 39.40424 0 592

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TABLE 5

Days Served in Jail > 3 Days (“Longstay”)

Longstay Frequency Percent

Less than 3 days 1,041 52.05

Greater than 3 days 959 47.95

Total 2,000 100.00

TABLE 6

Logistic Regression of Length of Stay, Bond Judge, Gender, Race, Misdemeanor, Felony

Longstay Coefficient Standard

Error

z P>|z| [95 percent Conf.

Interval]

Bond Judge .0000195 2.36e-06 8.25 0.000 .0000148 .0000241

Female -.3158308 .1138213 -2.77 0.006 -.5389164 -.0927451

Black .0180468 .0942647 0.19 0.848 -.1667086 .2028022

Felony .2702035 .1671991 1.62 0.106 -.0575006 .5979077

Misdemeanor .8850005 .168709 5.25 0.000 .5543369 1.215664

_cons -.8763078 .1653737 -5.30 0.000 -1.200434 -.5521812

***Number of observations: 2,000

***p-value (Prob > chi2) = 0.0000

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TABLE 7

Regression Table

***Number of observations = 2,000

***R-squared = 0.0580

Days Served Coefficient Standard Error t P>|t| [95 percent Conf.

Interval]

Bond Judge .0000724 7.67e-06 9.45 0.000 .0000574 .0000875

Female -4.99935 2.08144 -2.40 0.016 -9.081375 -.9173256

Black 2.720654 1.729945 1.57 0.116 -.6720365 6.113344

Felony 11.2264 2.943973 3.81 0.000 5.452817 16.99999

Misdemeanor 8.392987 3.015621 2.78 0.005 2.478888 14.30709

_cons 7.373982 2.892655 2.55 0.011 1.701039 13.04692

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TABLE 8

Inmates Held on Bail Only by the Amount and Whether They Posted Bail or Not

Bail Amount Set by

Judge

Number of

Individuals

Amount That

Did Not Pay

Percent

Unable to Pay

Less than $100 130 23 17.69

$101 - $500 429 61 14.22

$501 - 1,000 164 58 35.37

$1,001 - 5,000 915 624 68.20

$5,001 - 10,000 464 392 84.48

10,001 - 20,000 400 369 92.25

20,001 - 50,000 381 347 91.11

50,001 - 100,000 118 104 88.14

100,001 - 1,000,000 82 77 93.90

1,000,001 - 3,500,000 4 4 100.00

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Appendix B: Florida Pretrial Risk Assessment Instrument

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Appendix C: 2017 Florida Statutes Abridged

Chapter 903 Bail of Title XLVII Criminal Procedure and Corrections:

903.011 “Bail: and “bond” defined; general terms.

(1) As used in this chapter, the terms “bail” and “bond” include any and all forms of pretrial

release.

(2) Any monetary or cash component of any form of pretrial release may be met by a surety

bond.

(3) Differing monetary amounts may not be set for cash, surety, or other forms of pretrial

release.

903.02 Actions following denial; changes in bail conditions or bond amount; separation

by charge or offense.

(1) If application for bail is made to an authorized court and denied, no court of inferior

jurisdiction shall admit the applicant to bail unless such court of inferior jurisdiction is the court

having jurisdiction to try the defendant.

(2) No judge of a court of equal or inferior jurisdiction may remove a condition of bail or

reduce the amount of bond required.

(3) The term “court,” as used in this chapter, includes all state courts.

(4) Any judge setting or granting monetary bail shall set a separate and specific bail amount

for each charge or offense. When bail is posted, each charge or offense requires a separate bond.

903.03 Jurisdiction of trial court to admit to bail; duties and responsibilities of

Department of Corrections.

(1) After a person is held to answer by a trial court judge, the court having jurisdiction to try

the defendant shall, before indictment, affidavit, or information is filed, have jurisdiction to hear

and decide all preliminary motions regarding bail and production or impounding of all articles,

writings, moneys, or other exhibits expected to be used at the trial by either the state or the

defendant.

(2)(a) The Department of Corrections shall have the authority on the request of a circuit

court when a person charged with a noncapital crime or bailable offense is held, to make an

investigation and report to the court, including:

1. The circumstances of the accused’s family, employment, financial resources, character,

mental condition, and length of residence in the community;

2. The accused’s record of convictions, of appearance at court proceedings, of flight to avoid

prosecution, or failure to appear at court proceedings; and

3. Other facts that may be needed to assist the court in its determination of the indigency of

the accused and whether she or he should be released on her or his own recognizance.

(b) The court shall not be bound by the recommendations.

903.035 Applications for bail; information provided; hearing on application for

modification; penalty for providing false or misleading information or omitting material

information.

(1)(a) All information provided by a defendant, in connection with any application for or

attempt to secure bail, to any court, court personnel, or individual soliciting or recording such

information for the purpose of evaluating eligibility for, or securing, bail for the defendant, under

circumstances such that the defendant knew or should have known that the information was to be

used in connection with an application for bail, shall be accurate, truthful, and complete without

omissions to the best knowledge of the defendant.

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(b) The failure to comply with the provisions of paragraph (a) may result in the revocation or

modification of bail.

(2) An application for modification of bail on any felony charge must be heard by a court in

person, at a hearing with the defendant present, and with at least 3 hours’ notice to the state

attorney.

(3) Any person who intentionally provides false or misleading material information or

intentionally omits material information in connection with an application for bail or for

modification of bail is guilty of a misdemeanor or felony which is one degree less than that of the

crime charged for which bail is sought, but which in no event is greater than a felony of the third

degree, punishable as provided in s. 775.082 or s. 775.083.

903.0351 Restrictions on pretrial release pending probation-violation hearing or

community-control-violation hearing.

(1) In the instance of an alleged violation of felony probation or community control, bail or

any other form of pretrial release shall not be granted prior to the resolution of the probation-

violation hearing or the community-control-violation hearing to:

(a) A violent felony offender of special concern;

(b) A person who is on felony probation or community control for any offense committed on

or after the effective date of this act and who is arrested for a qualifying offense; or

(c) A person who is on felony probation or community control and has previously been

found by a court to be a habitual violent felony offender, a three-time violent felony offender, or

a sexual predator under s. 775.21, and who is arrested for committing a qualifying offense on or

after the effective date of this act.

(2) Subsection (1) shall not apply where the alleged violation of felony probation or

community control is based solely on the probationer or offender’s failure to pay costs or fines or

make restitution payments.

903.045 Nature of criminal surety bail bonds.

It is the public policy of this state and the intent of the Legislature that a criminal surety bail

bond, executed by a bail bond agent licensed pursuant to chapter 648 in connection with the

pretrial or appellate release of a criminal defendant, shall be construed as a commitment by and

an obligation upon the bail bond agent to ensure that the defendant appears at all criminal

proceedings for which the surety bond is posted.

903.046 Purpose of and criteria for bail determination.

(1) The purpose of a bail determination in criminal proceedings is to ensure the appearance

of the criminal defendant at subsequent proceedings and to protect the community against

unreasonable danger from the criminal defendant.

(2) When determining whether to release a defendant on bail or other conditions, and what

that bail or those conditions may be, the court shall consider:

(a) The nature and circumstances of the offense charged.

(b) The weight of the evidence against the defendant.

(c) The defendant’s family ties, length of residence in the community, employment history,

financial resources, and mental condition.

(d) The defendant’s past and present conduct, including any record of convictions, previous

flight to avoid prosecution, or failure to appear at court proceedings. However, any defendant

who had failed to appear on the day of any required court proceeding in the case at issue, but

who had later voluntarily appeared or surrendered, shall not be eligible for a recognizance bond;

and any defendant who failed to appear on the day of any required court proceeding in the case at

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issue and who was later arrested shall not be eligible for a recognizance bond or for any form of

bond which does not require a monetary undertaking or commitment equal to or greater than

$2,000 or twice the value of the monetary commitment or undertaking of the original bond,

whichever is greater. Notwithstanding anything in this section, the court has discretion in

determining conditions of release if the defendant proves circumstances beyond his or her

control for the failure to appear.

(e) The nature and probability of danger which the defendant’s release poses to the

community.

(f) The source of funds used to post bail or procure an appearance bond, particularly whether

the proffered funds, real property, property, or any proposed collateral or bond premium may be

linked to or derived from the crime alleged to have been committed or from any other criminal or

illicit activities. The burden of establishing the noninvolvement in or nonderivation from

criminal or other illicit activity of such proffered funds, real property, property, or any proposed

collateral or bond premium falls upon the defendant or other person proffering them to obtain the

defendant’s release.

(g) Whether the defendant is already on release pending resolution of another criminal

proceeding or on probation, parole, or other release pending completion of a sentence.

(h) The street value of any drug or controlled substance connected to or involved in the

criminal charge. It is the finding and intent of the Legislature that crimes involving drugs and

other controlled substances are of serious social concern, that the flight of defendants to avoid

prosecution is of similar serious social concern, and that frequently such defendants are able to

post monetary bail using the proceeds of their unlawful enterprises to defeat the social utility of

pretrial bail. Therefore, the courts should carefully consider the utility and necessity of

substantial bail in relation to the street value of the drugs or controlled substances involved.

(i) The nature and probability of intimidation and danger to victims.

(j) Whether there is probable cause to believe that the defendant committed a new crime

while on pretrial release.

(k) Any other facts that the court considers relevant.

(l) Whether the crime charged is a violation of chapter 874 or alleged to be subject to

enhanced punishment under chapter 874 or reclassification under s. 843.22. If any such violation

is charged against a defendant or if the defendant is charged with a crime that is alleged to be

subject to such enhancement or reclassification, he or she is not eligible for release on bail or

surety bond until the first appearance on the case to ensure the full participation of the prosecutor

and the protection of the public.

(m) Whether the defendant, other than a defendant whose only criminal charge is a

misdemeanor offense under chapter 316, is required to register as a sexual offender under s.

943.0435 or a sexual predator under s. 775.21; and, if so, he or she is not eligible for release on

bail or surety bond until the first appearance on the case to ensure the full participation of the

prosecutor and the protection of the public.

903.047 Conditions of pretrial release.

(1) As a condition of pretrial release, whether such release is by surety bail bond or

recognizance bond or in some other form, the defendant must:

(a) Refrain from criminal activity of any kind.

(b) If the court issues an order of no contact, refrain from any contact of any type with the

victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure.

An order of no contact is effective immediately and enforceable for the duration of the pretrial

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release or until it is modified by the court. The defendant shall be informed in writing of the

order of no contact, specifying the applicable prohibited acts, before the defendant is released

from custody on pretrial release. As used in this section, unless otherwise specified by the court,

the term “no contact” includes the following prohibited acts:

1. Communicating orally or in any written form, either in person, telephonically,

electronically, or in any other manner, either directly or indirectly through a third person, with

the victim or any other person named in the order. If the victim and the defendant have children

in common, at the request of the defendant, the court may designate an appropriate third person

to contact the victim for the sole purpose of facilitating the defendant’s contact with the children.

2. Having physical or violent contact with the victim or other named person or his or her

property.

3. Being within 500 feet of the victim’s or other named person’s residence, even if the

defendant and the victim or other named person share the residence.

4. Being within 500 feet of the victim’s or other named person’s vehicle, place of

employment, or a specified place frequented regularly by such person.

(c) Comply with all conditions of pretrial release.

(2) Upon motion by the defendant when bail is set, or upon later motion properly noticed

pursuant to law, the court may modify the condition required by paragraph (1)(b) if good cause is

shown and the interests of justice so require. The victim shall be permitted to be heard at any

proceeding in which such modification is considered, and the state attorney shall notify the

victim of the provisions of this subsection and of the pendency of any such proceeding.

903.0471 Violation of condition of pretrial release.

Notwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order

pretrial detention if the court finds probable cause to believe that the defendant committed a new

crime while on pretrial release.

903.05 Qualification of sureties.

A surety for the release of a person on bail, other than a company authorized by law to act as a

surety, shall be a resident of the state or own real estate within the state.

903.06 Validity of undertaking by minor.

Minors may bind themselves by a bond to secure their release on bail in the same manner as

persons sui juris.

903.08 Sufficiency of sureties.

The combined net worth of the sureties, exclusive of any other bonds on which they may be

principal, or surety and property exempt from execution, shall be at least equal to the amount

specified in the undertaking.

903.09 Justification of sureties.

(1) A surety shall execute an affidavit stating that she or he possesses the qualifications and

net worth required to become a surety. The affidavit shall describe the surety’s property and any

encumbrances and shall state the number and amount of any bonds entered by the surety at any

court that remain undischarged.

(2) A bond agent, as defined in s. 648.25(2), shall justify her or his suretyship by attaching a

copy of the power of attorney issued by the company to the bond or by attaching to the bond

United States currency, a United States postal money order, or a cashier’s check in the amount of

the bond; but the United States currency, United States postal money order, or cashier’s check

cannot be used to secure more than one bond. Nothing herein shall prohibit two or more

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qualified sureties from each posting any portion of a bond amount, and being liable for only that

amount, so long as the total posted by all cosureties is equal to the amount of bond required.

903.101 Sureties; licensed persons; to have equal access.

Subject to rules adopted by the Department of Financial Services and by the Financial

Services Commission, every surety who meets the requirements of ss. 903.05, 903.06, 903.08,

and 903.09, and every person who is currently licensed by the Department of Financial Services

and registered as required by s. 648.42 shall have equal access to the jails of this state for making

bonds.

903.105 Appearance bonds.

Any criminal defendant who is required to meet monetary bail or bail with any monetary

component may satisfy such bail by providing a surety bond as otherwise provided by law or by

providing an appearance bond as follows:

(1) Any defendant posting an appearance bond shall apply therefor in writing. Each

defendant charged with a felony of the second degree or higher, and each defendant appearing

before a court in connection with bail, shall sign the application upon oath in open court.

(2) After the application is completed and the quantity and other conditions of the bond are

determined as required by law, the defendant may deposit with the clerk of the court before

which the action is pending or with the sheriff, if designated by the clerk, a sum of money equal

to 10 percent of the bond and any additional collateral for all or part of the remaining portion of

the bond as the court may require.

(3) Upon depositing such sum and additional collateral and agreeing in writing to all

nonmonetary conditions of the bond which the court may require, the defendant shall be released

from custody subject to all conditions of release imposed by the court.

(4)(a) If the conditions of release have been performed and the defendant has been

discharged from all obligations in the action, the clerk of the court shall return to the defendant,

unless the court orders otherwise, 75 percent of the 10-percent sum deposited, plus any

additional required collateral, and shall retain as bail costs 25 percent of the 10-percent sum

deposited. At the request of the defendant, the court may order the amount repayable to the

defendant from such deposit to be paid to the defendant’s attorney of record.

(b) Moneys retained by the clerk under this provision shall be disbursed as directed by the

county commission for law enforcement, criminal justice, and criminal court operations relating

to pretrial release, including, but not limited to, screening, supervision, and apprehension, subject

to the following conditions:

1. The clerk must receive a sum equal to actual, demonstrable increased costs, if any,

attributable to the implementation of this section.

2. Moneys distributed to the sheriff must be used for increased expenditures in connection

with the apprehension of defendants who fail to appear as required.

903.131 Bail on appeal, revocation; recommission.

If a person admitted to bail on appeal commits and is convicted of a separate felony while free

on appeal, the bail on appeal shall be revoked and the defendant committed forthwith.

903.132 Bail on appeal; conditions for granting; appellate review.

(1) No person may be admitted to bail upon appeal from a conviction of a felony unless the

defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not

frivolous. However, in no case shall bail be granted if such person has previously been convicted

of a felony, the commission of which occurred prior to the commission of the subsequent felony,

and such person’s civil rights have not been restored or if other felony charges are pending

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against the person and probable cause has been found that the person has committed the felony

or felonies at the time the request for bail is made.

(2) An order by a trial court denying bail to a person pursuant to the provisions of subsection

(1) may be appealed as a matter of right to an appellate court, and such appeal shall be advanced

on the calendar of the appellate court for expeditious review.

(3) In no case may an original appearance bond be continued for the appeal. To reflect the

increased risk and probability of longer time considerations, there shall be a new undertaking of

a bond for the appeal.

903.14 Contracts to indemnify sureties.

(1) A surety shall file with the bond an affidavit stating the amount and source of any

security or consideration which the surety or anyone for his or her use has received or been

promised for the bond. The affidavit may be filed in person or electronically.

(2) A surety may maintain an action against the indemnitor only on agreements set forth in

the affidavit. In an action by the indemnitor to recover security or collateral, the surety shall have

the right to retain only the security or collateral stated in the affidavit.

(3) A limited surety or licensed bond agent may file a statement in lieu of the affidavit

required in subsection (1). Such statement must be filed within 30 days from the execution of the

undertaking.

903.16 Deposit of money or bonds as bail.

(1) A defendant who has been admitted to bail, or another person in the defendant’s behalf,

may deposit with the official authorized to take bail money or nonregistered bonds of the United

States, the state, or a city, town, or county in the state, equal in market value to the amount set in

the order and the personal bond of the defendant and an undertaking by the depositor if the

money or bonds are deposited by another. The sheriff or other officials may remit money or

bonds received to the clerk to be held by the clerk pending court action or return to the defendant

or depositor. The clerk shall accept money or bonds remitted by the sheriff.

(2) Consent is conclusively presumed for the clerk of the circuit court to sell bonds deposited

as bail after forfeiture of the bond.

903.22 Arrest of principal by surety before forfeiture.

A surety may arrest the defendant before a forfeiture of the bond for the purpose of

surrendering the defendant or the surety may authorize a peace officer to make the arrest by

endorsing the authorization on a certified copy of the bond.

903.26 Forfeiture of the bond; when and how directed; discharge; how and when made;

effect of payment.

(1) A bail bond shall not be forfeited unless:

(a) The information, indictment, or affidavit was filed within 6 months from the date of

arrest, and

(b) The clerk of court gave the surety at least 72 hours’ notice, exclusive of Saturdays,

Sundays, and holidays, before the time of the required appearance of the defendant. Notice shall

not be necessary if the time for appearance is within 72 hours from the time of arrest, or if the

time is stated on the bond. Such notice may be mailed or electronically transmitted.

(2)(a) If there is a failure of the defendant to appear as required, the court shall declare the

bond and any bonds or money deposited as bail forfeited. The clerk of the court shall mail or

electronically transmit a notice to the surety agent and surety company within 5 days after the

forfeiture. If such mailing or electronic transmission was properly accomplished as evidenced by

such certificate, the failure of the surety agent, of a company, or of a defendant to receive such

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notice shall not constitute a defense to such forfeiture and shall not be grounds for discharge,

remission, reduction, set aside, or continuance of such forfeiture. The forfeiture shall be paid

within 60 days after the date the notice was mailed or electronically transmitted.

(b) Failure of the defendant to appear at the time, date, and place of required appearance

shall result in forfeiture of the bond. Such forfeiture shall be automatically entered by the clerk

upon such failure to appear, and the clerk shall follow the procedures in paragraph (a). However,

the court may determine, in its discretion, in the interest of justice, that an appearance by the

defendant on the same day as required does not warrant forfeiture of the bond; and the court may

direct the clerk to set aside any such forfeiture which may have been entered. Any appearance by

the defendant later than the required day constitutes forfeiture of the bond, and the court shall not

preclude entry of such forfeiture by the clerk.

(c) If there is a forfeiture of the bond, the clerk shall provide, upon request, a certified copy

of the warrant or capias to the bail bond agent or surety company.

(3) Sixty days after the forfeiture notice has been mailed or electronically transmitted:

(a) State and county officials having custody of forfeited money shall deposit the money in

the fine and forfeiture fund established pursuant to s. 142.01.

(b) Municipal officials having custody of forfeited money shall deposit the money in a

designated municipal fund.

(c) Officials having custody of bonds as authorized by s. 903.16 shall transmit the bonds to

the clerk of the circuit court who shall sell them at market value and disburse the proceeds as

provided in paragraphs (a) and (b).

(4)(a) When a bond is forfeited, the clerk shall transmit the bond and any affidavits to the

clerk of the circuit court in which the bond and affidavits are filed. The clerk of the circuit court

shall record the forfeiture in the deed or official records book. If the undertakings and affidavits

describe real property in another county, the clerk shall transmit the bond and affidavits to the

clerk of the circuit court of the county where the property is located who shall record and return

them.

(b) The bond and affidavits shall be a lien on the real property they describe from the time of

recording in the county where the property is located for 2 years or until the final determination

of an action instituted thereon within a 2-year period. If an action is not instituted within 2 years

from the date of recording, the lien shall be discharged. The lien will be discharged 2 years after

the recording even if an action was instituted within 2 years unless a lis pendens notice is

recorded in the action.

(5) The court shall discharge a forfeiture within 60 days upon:

(a) A determination that it was impossible for the defendant to appear as required or within

60 days after the date of the required appearance due to circumstances beyond the defendant’s

control. The potential adverse economic consequences of appearing as required may not be

considered as constituting a ground for such a determination;

(b) A determination that, at the time of the required appearance or within 60 days after the

date of the required appearance, the defendant was confined in an institution or hospital; was

confined in any county, state, federal, or immigration detention facility; was deported; or is

deceased;

(c) Surrender or arrest of the defendant at the time of the required appearance or within 60

days after the date of the required appearance in any county, state, or federal jail or prison and

upon a hold being placed to return the defendant to the jurisdiction of the court. The court shall

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condition a discharge or remission on the payment of costs and the expenses incurred by an

official in returning the defendant to the jurisdiction of the court; or

(d) A determination that the state is unwilling to seek extradition of the fugitive defendant

within 30 days after a request by the surety agent to do so, and contingent upon the surety

agent’s consent to pay all costs and the expenses incurred by an official in returning the

defendant to the jurisdiction of the court, up to the penal amount of the bond.

(6) The discharge of a forfeiture shall not be ordered for any reason other than as specified

herein.

(7) The payment by a surety of a forfeiture under this law shall have the same effect on the

bond as payment of a judgment.

(8) If the defendant is arrested and returned to the county of jurisdiction of the court or has

posted a new bond for the case at issue before judgment, the clerk, upon affirmation by the

sheriff or the chief correctional officer, shall, without further hearing or order of the court,

discharge the forfeiture of the bond. However, if the surety agent fails to pay the costs and

expenses incurred in returning the defendant to the county of jurisdiction, the clerk shall not

discharge the forfeiture of the bond. If the surety agent and the sheriff fail to agree on the amount

of said costs, then the court, after notice to the sheriff and the state attorney, shall determine the

amount of the costs.

903.286 Return of cash bond; requirement to withhold unpaid fines, fees, court costs;

cash bond forms.

(1) Notwithstanding s. 903.31(2), the clerk of the court shall withhold from the return of a

cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent

licensed pursuant to chapter 648 sufficient funds to pay any unpaid costs of prosecution, costs of

representation as provided by ss. 27.52 and 938.29, court fees, court costs, and criminal

penalties. If sufficient funds are not available to pay all unpaid costs of prosecution, costs of

representation as provided by ss. 27.52 and 938.29, court fees, court costs, and criminal

penalties, the clerk of the court shall immediately obtain payment from the defendant or enroll

the defendant in a payment plan pursuant to s. 28.246.

(2) All cash bond forms used in conjunction with the requirements of s. 903.09 must

prominently display a notice explaining that all funds are subject to forfeiture and withholding by

the clerk of the court for the payment of costs of prosecution, costs of representation as provided

by ss. 27.52 and 938.29, court fees, court costs, and criminal penalties on behalf of the criminal

defendant regardless of who posted the funds.

903.31 Canceling the bond.

(1) Within 10 business days after the conditions of a bond have been satisfied or the

forfeiture discharged or remitted, the court shall order the bond canceled and, if the surety has

attached a certificate of cancellation to the original bond, the clerk of the court shall mail or

electronically furnish an executed certificate of cancellation to the surety without cost. An

adjudication of guilt or innocence or an acquittal, if a period of 36 months has passed since the

original bond was posted, or a withholding of an adjudication of guilt shall satisfy the conditions

of the bond. The original appearance bond shall expire 36 months after such bond has been

posted for the release of the defendant from custody. This subsection does not apply to cases in

which a bond has been declared forfeited before the 36-month expiration.

(2) The original appearance bond does not guarantee a deferred sentence; appearance during

or after a presentence investigation; appearance during or after appeals; conduct during or

appearance after admission to a pretrial intervention program; placement in a court-ordered

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program, including a residential mental health facility; payment of fines; or attendance at

educational or rehabilitation facilities the court otherwise provides in the judgment. If the

original appearance bond has been forfeited or revoked, the bond shall not be reinstated without

approval from the surety on the original bond.

(3) If no formal charges are brought against the defendant within 365 days after arrest, the

court shall order the bond canceled unless good cause is shown by the state.

903.32 Defects in bond.

(1) A bond shall not be held invalid because of any irregularity if it was taken by a legally

authorized official and states the place of appearance and the amount of bail.

(2) If no day, or an impossible day, is stated in a bond for the defendant’s appearance before

a trial court judge for a hearing or trial, the defendant shall be bound to appear 10 days after

receipt of notice to appear by the defendant, the defendant’s counsel, or any surety on the

undertaking.

903.33 Bail not discharged for certain defects.

The liability of a surety shall not be affected by his or her lack of any qualifications required

by law, any agreement not expressed in the undertakings, or the failure of the defendant to join in

the bond.

903.34 Who may admit to bail.

In criminal actions instituted or pending in any state court, bonds given by defendants before

trial until appeal shall be approved by a committing trial court judge or the sheriff. Appeal bonds

shall be approved as provided in s. 924.15.

903.36 Guaranteed arrest bond certificates as cash bail.

(1) A guaranteed traffic arrest bond certificate provided for in s. 627.758 shall be accepted as

bail in an amount not to exceed $1,000 for the appearance of the person named in the certificate

in any court to answer for the violation of a provision of chapter 316 or a similar traffic law or

ordinance, except driving while under the influence of intoxicants, or any felony.

(2) The execution of a bail bond by a licensed general lines agent of a surety insurer for the

automobile club or association member identified in the guaranteed traffic arrest bond certificate,

as provided in s. 627.758(4), shall be accepted as bail in an amount not to exceed $5,000 for the

appearance of the person named in the certificate in any court to answer for the violation of a

provision of chapter 316 or a similar traffic law or ordinance, except driving under the influence

of alcoholic beverages, chemical substances, or controlled substances, as prohibited by s.

316.193. Presentation of the guaranteed traffic arrest bond certificate and a power of attorney

from the surety insurer for its licensed general lines agents is authorization for such agent to

execute the bail bond.

(3) Automobile clubs and associations shall list the names and addresses of the licensed

general lines agents of a surety insurer that may execute bail bonds pursuant to subsection (2) in

a given area, which list shall be filed with the law enforcement agencies and court clerks in the

area.

(4) The provisions of s. 903.045 applicable to bail bond agents shall apply to surety insurers

and their licensed general lines agents who execute bail bonds pursuant to this section.

Chapter 907: Procedure After Arrest of Title XLVII Criminal Procedure and Corrections:

907.04 Disposition of defendant upon arrest.

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(1) Except as provided in subsection (2), if a person who is arrested does not have a right to

bail for the offense charged, he or she shall be delivered immediately into the custody of the

sheriff of the county in which the indictment, information, or affidavit is filed. If the person who

is arrested has a right to bail, he or she shall be released after giving bond on the amount

specified in the warrant.

907.041 Pretrial detention and release.

(1) LEGISLATIVE INTENT.

It is the policy of this state that persons committing serious criminal offenses, posing a threat to

the safety of the community or the integrity of the judicial process, or failing to appear at trial be

detained upon arrest. However, persons found to meet specified criteria shall be released under

certain conditions until proceedings are concluded and adjudication has been determined. The

Legislature finds that this policy of pretrial detention and release will assure the detention of

those persons posing a threat to society while reducing the costs for incarceration by releasing,

until trial, those persons not considered a danger to the community who meet certain criteria. It is

the intent of the Legislature that the primary consideration be the protection of the community

from risk of physical harm to persons.

(2) RULES OF PROCEDURE.

Procedures for pretrial release determinations shall be governed by rules adopted by the Supreme

Court.

(3) RELEASE ON NONMONETARY CONDITIONS.

(a) It is the intent of the Legislature to create a presumption in favor of release on nonmonetary

conditions for any person who is granted pretrial release unless such person is charged with a

dangerous crime as defined in subsection (4). Such person shall be released on monetary

conditions if it is determined that such monetary conditions are necessary to assure the presence

of the person at trial or at other proceedings, to protect the community from risk of physical harm

to persons, to assure the presence of the accused at trial, or to assure the integrity of the judicial

process.

(b) No person shall be released on nonmonetary conditions under the supervision of a pretrial

release service, unless the service certifies to the court that it has investigated or otherwise

verified:

1. The circumstances of the accused’s family, employment, financial resources, character,

mental condition, and length of residence in the community;

2. The accused’s record of convictions, of appearances at court proceedings, of flight to avoid

prosecution, or of failure to appear at court proceedings; and

3. Other facts necessary to assist the court in its determination of the indigency of the accused

and whether she or he should be released under the supervision of the service.

(4) PRETRIAL DETENTION.

(a) As used in this subsection, “dangerous crime” means any of the following:

1. Arson;

2. Aggravated assault;

3. Aggravated battery;

4. Illegal use of explosives;

5. Child abuse or aggravated child abuse;

6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or

disabled adult;

7. Aircraft piracy;

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8. Kidnapping;

9. Homicide;

10. Manslaughter;

11. Sexual battery;

12. Robbery;

13. Carjacking;

14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of

16 years;

15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age,

by or at solicitation of person in familial or custodial authority;

16. Burglary of a dwelling;

17. Stalking and aggravated stalking;

18. Act of domestic violence as defined in s. 741.28;

19. Home invasion robbery;

20. Act of terrorism as defined in s. 775.30;

21. Manufacturing any substances in violation of chapter 893;

22. Attempting or conspiring to commit any such crime; and

23. Human trafficking.

(b) No person charged with a dangerous crime shall be granted nonmonetary pretrial release at

a first appearance hearing; however, the court shall retain the discretion to release an accused on

electronic monitoring or on recognizance bond if the findings on the record of facts and

circumstances warrant such a release.

(c) The court may order pretrial detention if it finds a substantial probability, based on a

defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other

relevant facts, that any of the following circumstances exist:

1. The defendant has previously violated conditions of release and that no further conditions of

release are reasonably likely to assure the defendant’s appearance at subsequent proceedings;

2. The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or

injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to

do so, and that no condition of release will reasonably prevent the obstruction of the judicial

process;

3. The defendant is charged with trafficking in controlled substances as defined by s. 893.135,

that there is a substantial probability that the defendant has committed the offense, and that no

conditions of release will reasonably assure the defendant’s appearance at subsequent criminal

proceedings;

4. The defendant is charged with DUI manslaughter, as defined by s. 316.193, and that there is

a substantial probability that the defendant committed the crime and that the defendant poses a

threat of harm to the community; conditions that would support a finding by the court pursuant to

this subparagraph that the defendant poses a threat of harm to the community include, but are not

limited to, any of the following:

a. The defendant has previously been convicted of any crime under s. 316.193, or of any crime

in any other state or territory of the United States that is substantially similar to any crime under

s. 316.193;

b. The defendant was driving with a suspended driver license when the charged crime was

committed; or

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c. The defendant has previously been found guilty of, or has had adjudication of guilt withheld

for, driving while the defendant’s driver license was suspended or revoked in violation of s.

322.34;

5. The defendant poses the threat of harm to the community. The court may so conclude, if it

finds that the defendant is presently charged with a dangerous crime, that there is a substantial

probability that the defendant committed such crime, that the factual circumstances of the crime

indicate a disregard for the safety of the community, and that there are no conditions of release

reasonably sufficient to protect the community from the risk of physical harm to persons;

6. The defendant was on probation, parole, or other release pending completion of sentence or

on pretrial release for a dangerous crime at the time the current offense was committed;

7. The defendant has violated one or more conditions of pretrial release or bond for the offense

currently before the court and the violation, in the discretion of the court, supports a finding that

no conditions of release can reasonably protect the community from risk of physical harm to

persons or assure the presence of the accused at trial; or

8.a. The defendant has ever been sentenced pursuant to s. 775.082(9) or s. 775.084 as a prison

releasee reoffender, habitual violent felony offender, three-time violent felony offender, or

violent career criminal, or the state attorney files a notice seeking that the defendant be sentenced

pursuant to s. 775.082(9) or s. 775.084, as a prison releasee reoffender, habitual violent felony

offender, three-time violent felony offender, or violent career criminal;

b. There is a substantial probability that the defendant committed the offense; and

c. There are no conditions of release that can reasonably protect the community from risk of

physical harm or ensure the presence of the accused at trial.

(d) When a person charged with a crime for which pretrial detention could be ordered is

arrested, the arresting agency shall promptly notify the state attorney of the arrest and shall

provide the state attorney with such information as the arresting agency has obtained relative to:

1. The nature and circumstances of the offense charged;

2. The nature of any physical evidence seized and the contents of any statements obtained from

the defendant or any witness;

3. The defendant’s family ties, residence, employment, financial condition, and mental

condition; and

4. The defendant’s past conduct and present conduct, including any record of convictions,

previous flight to avoid prosecution, or failure to appear at court proceedings.

(e) When a person charged with a crime for which pretrial detention could be ordered is

arrested, the arresting agency may detain such defendant, prior to the filing by the state attorney

of a motion seeking pretrial detention, for a period not to exceed 24 hours.

(f) The pretrial detention hearing shall be held within 5 days of the filing by the state attorney

of a complaint to seek pretrial detention. The defendant may request a continuance. No

continuance shall be for longer than 5 days unless there are extenuating circumstances. The

defendant may be detained pending the hearing. The state attorney shall be entitled to one

continuance for good cause.

(g) The state attorney has the burden of showing the need for pretrial detention.

(h) The defendant is entitled to be represented by counsel, to present witnesses and evidence,

and to cross-examine witnesses. The court may admit relevant evidence without complying with

the rules of evidence, but evidence secured in violation of the United States Constitution or the

Constitution of the State of Florida shall not be admissible. No testimony by the defendant shall

be admissible to prove guilt at any other judicial proceeding, but such testimony may be admitted

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in an action for perjury, based upon the defendant’s statements made at the pretrial detention

hearing, or for impeachment.

(i) The pretrial detention order of the court shall be based solely upon evidence produced at the

hearing and shall contain findings of fact and conclusions of law to support it. The order shall be

made either in writing or orally on the record. The court shall render its findings within 24 hours

of the pretrial detention hearing.

(j) A defendant convicted at trial following the issuance of a pretrial detention order shall have

credited to his or her sentence, if imprisonment is imposed, the time the defendant was held

under the order, pursuant to s. 921.161.

(k) The defendant shall be entitled to dissolution of the pretrial detention order whenever the

court finds that a subsequent event has eliminated the basis for detention.

(l) The Legislature finds that a person who manufactures any substances in violation of chapter

893 poses a threat of harm to the community and that the factual circumstances of such a crime

indicate a disregard for the safety of the community. The court shall order pretrial detention if

the court finds that there is a substantial probability that a defendant charged with manufacturing

any substances in violation of chapter 893 committed such a crime and if the court finds that

there are no conditions of release reasonably sufficient to protect the community from the risk of

physical harm to persons.

907.043 Pretrial release; citizens’ right to know.

(1) This section may be cited as the “Citizens’ Right-to-Know Act.”

(2) As used in this section, the term:

(a) “Nonsecured release” means the release of a defendant from pretrial custody when no

secured surety or cash bond is required as a condition of the release.

(b) “Pretrial release program” means an entity, public or private, that conducts investigations of

pretrial detainees, makes pretrial release recommendations to a court, and electronically monitors

and supervises pretrial defendants. However, the term “pretrial release program” shall not apply

to the Department of Corrections.

(c) “Register” means a public record prepared by a pretrial release program which furnishes

specified data and is readily available to the public at the office of the clerk of the circuit court.

(d) “Secured release” means the release of a defendant from pretrial custody with a financial

guarantee, such as cash or a surety bond, required as a condition of the release.

(3)(a) Each pretrial release program must prepare a register displaying information that is

relevant to the defendants released through such a program.

907.044 Annual study of pretrial release program effectiveness and cost efficiency.

The Office of Program Policy Analysis and Government Accountability shall conduct an

annual study to evaluate the effectiveness and cost efficiency of pretrial release programs in this

state. The study’s scope shall include, but need not be limited to, gathering information

pertaining to the funding sources of each pretrial release program, the nature of criminal

convictions of defendants accepted into the programs, the number of failed court appearances by

defendants accepted into each program, and the number of warrants issued subsequently by

defendants in each program, as well as the program’s compliance with the provisions of this

section. OPPAGA shall submit a report to the President of the Senate and the Speaker of the

House of Representatives by January 1 of each year.

907.045 Habeas corpus; motion to dismiss; preliminary hearing.

A defendant who is in custody when an indictment, information, or affidavit on which she or

he can be tried is filed may apply for a writ of habeas corpus attacking the indictment,

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information, or affidavit, or the defendant may move to dismiss the indictment, information, or

affidavit. A defendant who has been confined for 30 days after her or his arrest without a trial

shall be allowed a preliminary hearing upon application.

Chapter 648: Bail Bond Agents of Title XXXVII Insurance:

648.24 Declaration of public policy.

It is the public policy of this state and the intent of the Legislature that a bond for which fees

or premiums are charged must be executed by a bail bond agent licensed pursuant to this chapter

in connection with the pretrial or appellate release of a criminal defendant and shall be construed

as a commitment by and obligation upon the bail bond agent to ensure that the defendant appears

at all subsequent criminal proceedings.

648.25 Definitions.

As used in this chapter, the term:

(1) “Bail bond agency” means:

(a) The building where a licensee maintains an office and where all records required by ss.

648.34 and 648.36 are maintained; or

(b) An entity that:

1. Charges a fee or premium to release an accused defendant or detainee from jail; or

2. Engages in or employs others to engage in any activity that may be performed only by a

licensed and appointed bail bond agent.

(2) “Bail bond agent” means a limited surety agent or a professional bail bond agent as

hereafter defined.

(3) “Managing general agent” means any individual, partnership, association, or corporation

appointed or employed by an insurer to supervise or manage the bail bond business written in

this state by limited surety agents appointed by the insurer.

(4) “Insurer” means any domestic, foreign, or alien surety company which has been authorized

to transact surety business in this state.

(5) “Limited surety agent” means any individual appointed by an insurer by power of attorney

to execute or countersign bail bonds in connection with judicial proceedings who receives or is

promised money or other things of value therefor.

(6) “Primary bail bond agent” means a licensed bail bond agent who is responsible for the

overall operation and management of a bail bond agency location and whose responsibilities

include hiring and supervising all individuals within that location. A bail bond agent may be

designated as primary bail bond agent for only one bail bond agency location.

(7) “Professional bail bond agent” means any person who pledges United States currency,

United States postal money orders, or cashier’s checks as security for a bail bond in connection

with a judicial proceeding and receives or is promised therefor money or other things of value.

(8) “Temporary bail bond agent” means a person employed by a bail bond agent or agency,

insurer, or managing general agent, and such licensee has the same authority as a licensed bail

bond agent, including presenting defendants in court; apprehending, arresting, and surrendering

defendants to the proper authorities, while accompanied by a supervising bail bond agent or an

agent from the same agency; and keeping defendants under necessary surveillance. However, a

temporary licensee may not execute or sign bonds, handle collateral receipts, or deliver bonds to

appropriate authorities. A temporary licensee may not operate an agency or branch agency

separate from the location of the supervising bail bond agent, managing general agent, or insurer

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by whom the licensee is employed. This does not affect the right of a bail bond agent or insurer

to hire counsel or to obtain the assistance of law enforcement officers.

648.27 Licenses and appointments; general.

(1) A license may not be issued except in compliance with this chapter, and may not be issued

except to an individual. A firm, partnership, association, or corporation, as such, may not be

licensed.

648.279 Scope of license.

The issuance of a license pursuant to the provisions of this chapter shall confer upon the

holder the right to perform all duties and powers as authorized or conferred by the laws of this

state.

648.285 Bond agency; ownership requirements.

(1) A person may not own, control, or otherwise have a pecuniary interest in a bail bond

agency unless such individual is a licensed and appointed bail bond agent. Any agency that is not

in compliance with this subsection shall be subject to the issuance of an immediate final order of

suspension of all operations until the agency achieves compliance.

(2) If the owner of a bail bond agency dies or becomes mentally incapacitated, a personal

representative or legal guardian may be issued a temporary permit to manage the affairs of the

bail bond agency. Such person must appoint or maintain the appointment of a primary bail bond

agent, as provided in s. 648.387, and may not engage in any activities as a licensed bail bond

agent but must comply with s. 648.387 during the administration of the estate or guardianship. A

temporary permit is valid for a maximum of 24 months.

(3) Application for a temporary permit must be made by the personal representative or legal

guardian upon statements and affidavits filed with the department on forms prescribed and

furnished by it. The applicant must meet the qualifications for licensure as a bail bond agent,

except for the residency, examination, education, and experience requirements.

648.29 Build-up funds posted by bail bond agent.

(1) All build-up funds pledged to indemnify an insurer which are posted by a bail bond agent

or agency with the insurer must be held in an individual build-up trust account for the agent or

agency in an FDIC-approved or FSLIC-approved bank or savings and loan association in this

state, jointly in the name of the agent or agency and the insurer or in trust for the agent or agency

by the insurer. Such account must remain open to inspection and examination by the department

at all times. An accounting of all such funds shall be maintained which designates the amounts

collected on each bond written.

(2) Build-up funds may not exceed 40 percent of the premium as established by the agent’s

contract agreement with the insurer or managing general agent. Build-up funds received shall be

immediately deposited to the build-up trust account. Interest on such accounts shall accrue to the

bail bond agent.

(3) Build-up funds are maintained as a trust fund created on behalf of a bail bond agent or

agency, held by the insurer in a fiduciary capacity to be used to indemnify the insurer for losses

and any other agreed-upon costs related to a bail bond executed by the agent. The build-up funds

are the sole property of the agent or agency. Upon termination of the bail bond agency or agent’s

contract and discharge of open bond liabilities on the bonds written, build-up funds are due and

payable to the bail bond agent or agency not later than 6 months after final discharge of the open

bond liabilities.

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(4) Each insurer authorized to write bail bonds in this state and each managing general agent

must furnish to the department a certified copy of a statement listing each build-up trust account

and the balance therein by March 1 of each year.

(5) Insurers must provide copies of build-up fund account bank statements to their agents and

agencies.

648.30 Licensure and appointment required.

(1) A person may not act in the capacity of a bail bond agent or temporary bail bond agent or

perform any of the functions, duties, or powers prescribed for bail bond agents or temporary bail

bond agents under this chapter unless that person is qualified, licensed, and appointed as

provided in this chapter.

(2) A person may not represent himself or herself to be a bail enforcement agent, bounty

hunter, or other similar title in this state.

(3) A person, other than a certified law enforcement officer, may not apprehend, detain, or

arrest a principal on a bond, wherever issued, unless that person is qualified, licensed, and

appointed as provided in this chapter or licensed as a bail bond agent or bail bond enforcement

agent, or holds an equivalent license by the state where the bond was written.

(4) Any person who violates this section commits a felony of the third degree, punishable as

provided in s. 775.082, s. 775.083, or s. 775.084.

648.33 Bail bond rates.

(1) Bail bond rates are subject to the provisions of part I of chapter 627 of the insurance code.

(2) It is unlawful for a bail bond agent to execute a bail bond without charging a premium

therefor, and the premium rate may not exceed or be less than the premium rate as filed with and

approved by the office.

(3) Any person who violates this section commits a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s. 775.083.

648.34 Bail bond agents; qualifications.

(1) An application for licensure as a bail bond agent must be submitted on forms prescribed by

the department. The application must include the applicant’s full name; date of birth; social

security number; residence, business, and mailing addresses; contact telephone numbers,

including a business telephone number; and e-mail address.

(2) To qualify as a bail bond agent, it must affirmatively appear at the time of application and

throughout the period of licensure that the applicant has complied with the provisions of s.

648.355 and has obtained a temporary license pursuant to such section and:

(a) The applicant is a natural person who has reached the age of 18 years and holds a high

school diploma or its equivalent.

(b) The applicant is a United States citizen or legal alien who possesses work authorization

from the United States Bureau of Citizenship and Immigration Services and is a resident of this

state.

(c) The place of business of the applicant will be located in this state and in the county where

the applicant will maintain his or her records and be actively engaged in the bail bond business

and maintain an agency accessible to the public which is open for reasonable business hours.

(d) The applicant is vouched for and recommended upon sworn statements filed with the

department by at least three reputable citizens who are residents of the same counties in which

the applicant proposes to engage in the bail bond business.

(e) The applicant is a person of high character and approved integrity and has not been

convicted of or pleaded guilty or no contest to a felony, a crime involving moral turpitude, or a

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crime punishable by imprisonment of 1 year or more under the law of any state, territory, or

country, whether or not a judgment or conviction has been entered.

(f) The applicant has passed any required examination.

(3) The department may collect a fee necessary to cover the cost of a character and credit

report made by an established and reputable independent reporting service. The fee shall be

deposited to the credit of the Insurance Regulatory Trust Fund. Any information so furnished is

confidential and exempt from the provisions of s. 119.07(1).

(4) The applicant shall furnish, with his or her application, a complete set of his or her

fingerprints and a recent credential-sized, fullface photograph of the applicant. The applicant’s

fingerprints shall be certified by an authorized law enforcement officer. The department shall not

authorize an applicant to take the required examination until the department has received a report

from the Department of Law Enforcement and the Federal Bureau of Investigation relative to the

existence or nonexistence of a criminal history report based on the applicant’s fingerprints.

(5) The department shall conduct a comprehensive investigation of each applicant, including a

background check. The investigation of the applicant’s qualifications, character, experience,

background, and fitness shall include submission of the applicant’s fingerprints to the

Department of Law Enforcement and the Federal Bureau of Investigation and consideration of

any state criminal records, federal criminal records, or local criminal records obtained from these

agencies or from local law enforcement agencies.

648.35 Professional bail bond agent; qualifications.

In addition to the qualifications prescribed in s. 648.34, to qualify as a professional bail bond

agent an applicant shall:

(1) File with his or her application for licensure and with each application for renewal or

continuation of his or her appointment a detailed financial statement under oath; and

(2) File with his or her application for licensure the rating plan proposed for use in writing bail

bonds. Such rating plan must be approved by the office prior to issuance of the license.

648.355 Temporary limited license as limited surety agent or professional bail bond

agent; pending examination.

(1) The department may, in its discretion, issue a temporary license as a limited surety agent or

professional bail bond agent.

648.365 Statistical reporting requirements; penalty for failure to comply.

(1) Each insurer and each bail bond agent who writes bail bonds in this state, shall maintain

and transmit the following information, based on their Florida bail bond business, to the

department or office when requested and shall report the information separately for each

company represented but only insurers shall report the information specified in paragraphs (a),

(l), and (m):

(a) Commissions paid.

(b) The number of, and the total dollar amount of, bonds executed.

(c) The number of, and the total dollar amount of, bonds declared forfeited.

(d) The number of, and the total dollar amount of, forfeitures discharged, remitted, or

otherwise recovered prior to payment for any reason.

(e) The number of, and the total dollar amount of, forfeitures discharged, remitted, or otherwise

recovered prior to payment due to the apprehension of the defendant by the bail bond agent.

(f) The number of, and the total dollar amount of, judgments entered.

(g) The number of, and the total dollar amount of, forfeitures paid and subsequently recovered

from the court by discharge or remission or otherwise.

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(h) A list of every outstanding or unpaid forfeiture, estreature, and judgment, with the case

number and the name of the court in which such forfeiture, estreature, or judgment is recorded

and the name of each agency or firm that employs the bail bond agent.

(i) The number of, and the total dollar amount of, bonds for which collateral was accepted.

(j) The actual realized value of collateral converted, excluding the cost of converting the

collateral.

(k) The cost of converting collateral.

(l) The underwriting gain or loss.

(m) The net investment gain or loss allocated to the flow of funds associated with Florida

business.

(n) Such additional information as the department or office may require in order to:

1. Evaluate the reasonableness of rates or assure that such rates are not excessive or unfairly

discriminatory.

2. Evaluate the financial condition or trade practices of bail bond agents and sureties executing

bail bonds.

3. Evaluate the performance of the commercial bail bond industry in accordance with

appropriate criminal justice system goals and standards.

Each bail bond agent shall submit a copy of such information to each insurer he or she

represents.

(2) Any person who intentionally fails to provide the information in this section when

requested by the department or office, intentionally provides incorrect or misleading information,

or intentionally omits any required information commits a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s. 775.083.

648.38 Licensure examination for bail bond agents; time; place; fees; scope.

(1) Upon approval by the department of a licensure application, the applicant for licensure as a

bail bond agent shall appear in person to take a written examination prepared by the department,

or by a person designated by the department for that purpose, testing the applicant’s ability and

qualifications to be a bail bond agent. The department shall determine the minimum performance

level required for passage of the examination in order to ensure that the applicant has an

adequate level of competence and knowledge of the duties and responsibilities of a bail bond

agent.

(2) The department or a person designated by the department shall provide notice of the time

and place of the examination to each applicant for licensure required to take an examination who

will be eligible to take the examination as of the examination date. The notice shall be e-mailed

to the applicant at the e-mail address shown on his or her application for licensure. Notice shall

be deemed given when so mailed.

(3) Prior to being permitted to take an examination, each applicant must pay the department or

a person designated by the department an examination fee. The fee for examination is not

refundable.

(4) The examination shall be held in an adequate and designated examination center in this

state.

(5) The applicant must appear in person and take the examination for licensure at the time and

place specified in the written notice.

(6) The examination shall be conducted by an employee of the department or a person

designated by the department for that purpose.

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(7) All examinations shall be given and graded in a fair and impartial manner and without

unfair discrimination in favor of or against any particular applicant.

(8) The scope of the examination shall be as broad as the bail bond business.

(9) Failure of the applicant to secure approval of the department does not preclude him or her

from applying for licensure as many times as he or she desires, but an application may not be

considered by the department within 30 days after the date upon which the department denied the

last application.

(10) Any bail bond agent who successfully passes an examination and is subsequently licensed

as a bail bond agent must be appointed within 48 months after the date of licensure or be subject

to another examination unless failure to be so appointed was due to military service, in which

case the period of time in which another examination is not required may, in the department’s

discretion, be extended to 12 months following the date of discharge from military service, if the

military service does not exceed 3 years. An extension of more than 6 years may not be granted

under this subsection.

648.382 Appointment of bail bond agents and temporary bail bond agents; effective date

of appointment.

(1) Each insurer appointing a bail bond agent and each insurer, managing general agent, or bail

bond agent appointing a temporary bail bond agent in this state must file the appointment with

the department and, at the same time, pay the applicable appointment fees and taxes. A person

appointed under this section must hold a valid bail bond agent’s or temporary bail bond agent’s

license.

(2) Prior to any appointment, an appropriate officer or official of the appointing insurer in the

case of a bail bond agent or an insurer, managing general agent, or bail bond agent in the case of

a temporary bail bond agent must submit:

(a) A certified statement or affidavit to the department stating what investigation has been

made concerning the proposed appointee and the proposed appointee’s background and the

appointing person’s opinion to the best of his or her knowledge and belief as to the moral

character and reputation of the proposed appointee. In lieu of such certified statement or

affidavit, by authorizing the effectuation of an appointment for a licensee, the appointing entity

certifies to the department that such investigation has been made and that the results of the

investigation and the appointing person’s opinion is that the proposed appointee is a person of

good moral character and reputation and is fit to engage in the bail bond business;

(b) An affidavit under oath on a form prescribed by the department, signed by the proposed

appointee, stating that premiums are not owed to any insurer and that the appointee will

discharge all outstanding forfeitures and judgments on bonds previously written. If the appointee

does not satisfy or discharge such forfeitures or judgments, the former insurer shall file a notice,

with supporting documents, with the appointing insurer, the former agent, and the department,

stating under oath that the licensee has failed to timely satisfy forfeitures and judgments on

bonds written and that the insurer has satisfied the forfeiture or judgment from its own funds.

Upon receipt of such notification and supporting documents, the appointing insurer shall

immediately cancel the licensee’s appointment. The licensee may be reappointed only upon

certification by the former insurer that all forfeitures and judgments on bonds written by the

licensee have been discharged. The appointing insurer or former agent may, within 10 days, file

a petition with the department seeking relief from this paragraph. Filing of the petition stays the

duty of the appointing insurer to cancel the appointment until the department grants or denies the

petition; and

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(c) Any other information that the department reasonably requires concerning the proposed

appointee.

(3) By authorizing the effectuation of an appointment for a licensee, the appointing insurer

certifies to the department that the insurer will be bound by the acts of the bail bond agent acting

within the scope of his or her appointment, and, in the case of a temporary bail bond agent, the

appointing insurer, managing general agent, or bail bond agent, as the case may be, must certify

to the department that he or she will supervise the temporary bail bond agent’s activities.

(4) Each appointing insurer, managing general agent, or bail bond agent must advise the

department in writing within 5 days after receiving notice or learning that an appointee has been

arrested for, pled guilty or nolo contendere to, or been found guilty of, a felony or other offense

punishable by imprisonment of 1 year or more under the law of any jurisdiction, whether

judgment was entered or withheld by the court.

(5) A list of current appointments must be submitted to the department each month but in no

case later than 45 days after the date of appointment. All appointments are effective as of the

date indicated on the appointment form.

(6) Failure to notify the department within the required time period shall result in the

appointing entity being assessed a delinquent fee of $250. Delinquent fees shall be paid by the

appointing entity and shall not be charged to the appointee.

648.383 Renewal, continuation, reinstatement, and termination of appointment; bail

bond agents.

(1) The appointment of a bail bond agent shall continue in force unless suspended, revoked, or

otherwise terminated, subject to a renewal request filed by the appointing entity in the

appointee’s birth month and every 24 months thereafter. A renewal request must be filed with the

department or person designated by the department to administer appointments along with

payment of the renewal appointment fee and taxes as prescribed in s. 624.501.

(2) Each appointing person or person designated by the department to administer appointments

must file the lists, statement, and information as to each bail bond agent whose appointment is

being renewed, accompanied by payment of the applicable renewal fees and taxes as prescribed

in s. 624.501.

(3) An appointment may be renewed without penalty if the information required under

subsection (2) is received prior to the expiration of the appointment in the licensee’s birth month,

and such appointment shall be renewed, effective on the first day of the month succeeding the

month in which the appointment was scheduled to expire.

(4) If the information required under subsection (2) is received after the renewal date, the

appointment may be renewed if the appointment, late filing, continuation, and reinstatement fees

accompany the application as required under s. 624.501.

648.384 Effect of expiration of appointment; bail bond agents.

(1) Upon the expiration of any person’s appointment as provided in s. 648.383, such person is

without any authority to engage or attempt to engage in any activity requiring such appointment.

(2) If a bail bond agent fails to maintain an appointment with an insurer during any 48-month

period, the bail bond agent may not be granted a reappointment until he or she qualifies as a first-

time applicant.

648.385 Continuing education required; requirements.

(1) The purpose of this section is to establish requirements and standards for continuing

education courses for persons authorized to write bail bonds in this state.

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(2) Each person subject to this chapter must complete a minimum of 14 hours of continuing

education courses every 2 years as specified in s. 626.2815.

648.386 Qualifications for prelicensing and continuing education schools and instructors.

(1) SCHOOLS AND CURRICULUM FOR PRELICENSING SCHOOLS.

In order to be considered for approval and certification as an approved limited surety agent and

professional bail bond agent prelicensing school, such entity must:

(a)1. Offer a minimum of two 120-hour classroom-instruction basic certification courses in the

criminal justice system per calendar year unless a reduced number of course offerings per

calendar year is warranted in accordance with rules promulgated by the department; or

2. Offer a department-approved correspondence course pursuant to department rules.

(b) Submit a prelicensing course curriculum to the department for approval.

(c) If applicable, offer prelicensing classes which are taught by instructors approved by the

department.

648.387 Primary bail bond agents; duties.

(1) The owner or operator of a bail bond agency shall designate a primary bail bond agent for

each location, and shall file with the department the name and license number of the person and

the address of the location on a form approved by the department. The designation of the primary

bail bond agent may be changed if the department is notified immediately. Failure to notify the

department within 10 working days after such change is grounds for disciplinary action pursuant

to s. 648.45.

(2) The primary bail bond agent is responsible for the overall operation and management of a

bail bond agency location, whose responsibilities may include, without limitations, hiring and

supervising of all individuals within the location, whether they deal with the public in the

solicitation or negotiation of bail bond contracts or in the collection or accounting of moneys. A

person may be designated as primary bail bond agent for only one location.

(3) The department may suspend or revoke the license of the owner, operator, and primary bail

bond agent if a bail bond agency employs, contracts with, or uses the services of a person who

has had a license denied or whose license is currently suspended or revoked. However, a person

who has been denied a license for failure to pass a required examination may be employed to

perform clerical or administrative functions for which licensure is not required.

(4) An owner, operator, or primary agent may not employ, contract with, or use the services of

any person in a bail bond agency who has been charged with, found guilty of, or pled guilty or

nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the

law of any jurisdiction, without regard to whether judgment was entered or withheld by the

court.

(5) A bail bond agency location may not conduct surety business unless a primary bail bond

agent is designated at all times. The failure to designate a primary agent on a form prescribed by

the department, within 10 working days after an agency’s inception or a change of primary

agent, is a violation of this chapter, punishable as provided in s. 648.45.

648.388 Insurer must appoint managing general agent.

Any insurer regularly engaged in the execution of bail bonds in this state shall have a managing

general agent in this state to supervise its agents. Upon the appointment of a managing general

agent, the insurer shall file with the department an affidavit under oath, executed by the

appointee, certifying that the appointee does not owe any unpaid premiums to any insurer and

does not have any unpaid judgments or forfeitures in any state. A managing general agent shall

maintain an office in this state and maintain all records relating to bonds issued in this state.

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648.39 Termination of appointment of managing general agents, bail bond agents, and

temporary bail bond agents.

(1) An insurer who terminates the appointment of a managing general agent, bail bond agent,

or temporary bail bond agent shall, within 10 days after such termination, file written notice

thereof with the department together with a statement that it has given or mailed notice to the

terminated agent. Such notice filed with the department must state the reasons, if any, for such

termination. Information so furnished the department is confidential and exempt from the

provisions of s. 119.07(1).

(2) Each insurer shall, within 5 days after terminating the appointment of any managing

general agent, bail bond agent, or temporary bail bond agent, give written notice thereof to each

clerk of the circuit court and sheriff with whom such person is registered.

(3) An insurer that terminates the appointment of a managing general agent, bail bond agent, or

temporary bail bond agent may authorize such person to continue to attempt the arrest and

surrender of a defendant for whom a surety bond had been written by the bail bond agent prior to

termination and to seek discharge of forfeitures and judgments as provided in chapter 903.

648.40 Application for appointment of professional bail bond agents; termination.

(1) Upon licensure as a professional bail bond agent, the licensee shall file an application for

appointment with the department together with the required appointment fees and taxes as

prescribed in s. 624.501.

(2) Any professional bail bond agent who discontinues writing bail bonds during the period for

which he or she is appointed must notify each clerk of the circuit court and each sheriff with

whom he or she is registered and the department within 30 days after such discontinuance.

648.41 Termination of appointment of temporary bail bond agents.

A bail bond agent, insurer, or managing general agent terminating the appointment of a

temporary bail bond agent must, within 10 days, file written notice thereof with the department,

together with a statement that notice has been given or mailed to the temporary bail bond agent.

Such notice filed with the department shall state the reasons, if any, for such termination.

Information so furnished the department is confidential and exempt from the provisions of s.

119.07(1).

648.42 Registration of bail bond agents.

A bail bond agent may not become a surety on an undertaking unless he or she has registered

in the office of the sheriff and with the clerk of the circuit court in the county in which the bail

bond agent resides. The bail bond agent may register in a like manner in any other county, and

any bail bond agent shall file a certified copy of his or her appointment by power of attorney

from each insurer which he or she represents as a bail bond agent with each of such officers.

Registration and filing of a certified copy of renewed power of attorney shall be performed by

April 1 of each odd-numbered year. The clerk of the circuit court and the sheriff shall not permit

the registration of a bail bond agent unless such bail bond agent is currently licensed and

appointed by the department. Nothing in this section shall prevent the registration of a temporary

licensee at the jail for the purposes of enabling the licensee to perform the duties under such

license as set forth in this chapter.

648.43 Power of attorney; approval by office; filing of copies; notification of transfer

bond.

(1) Every insurer engaged in the writing of bail bonds through bail bond agents in this state

shall submit to the office for prior approval a sample power of attorney, which shall be the only

form of power of attorney the insurer issues to bail bond agents in this state.

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(2) Every professional bail bond agent who authorizes a licensed professional bail bond agent

directly employed and appointed by him or her to sign his or her name to bonds must file a copy

of the power of attorney given to the appointed professional bail bond agent with the sheriff and

the clerk of the circuit court in the county in which he or she resides and with the department.

Such power of attorney shall remain in full force and effect until written notice revoking the

power of attorney has been received by the above-named officials.

(3) Every bail bond agent who executes or countersigns a transfer bond shall indicate in writing

on the bond the name and address of the referring bail bond agent.

648.44 Prohibitions; penalty.

(1) A bail bond agent or temporary bail bond agent may not:

(a) Suggest or advise the employment of, or name for employment, any particular attorney to

represent his or her principal.

(b) Directly or indirectly solicit business in or on the property or grounds of a jail, prison, or

other place where prisoners are confined or in or on the property or grounds of any court. The

term “solicitation” includes the distribution of business cards, print advertising, or other written

or oral information directed to prisoners or potential indemnitors, unless a request is initiated by

the prisoner or a potential indemnitor. Permissible print advertising in the jail is strictly limited to

a listing in a telephone directory and the posting of the bail bond agent’s or agency’s name,

address, and telephone number in a designated location within the jail.

(c) Initiate in-person or telephone solicitation after 9:00 p.m. or before 8:00 a.m., in the case of

domestic violence cases, at the residence of the detainee or the detainee’s family. Any

solicitation not prohibited by this chapter must comply with the telephone solicitation

requirements.

(d) Wear or display any identification other than the department issued or approved license or

approved department identification, which includes a citation of the licensee’s arrest powers, in

or on the property or grounds of a jail, prison, or other place where prisoners are confined or in

or on the property or grounds of any court.

(e) Pay a fee or rebate or give or promise anything of value to a jailer, police officer, peace

officer, or committing trial court judge or any other person who has power to arrest or to hold in

custody or to any public official or public employee to secure a settlement, compromise,

remission, or reduction of the amount of any bail bond or estreatment thereof.

(f) Pay a fee or rebate or give anything of value to an attorney in a bail bond matter, except in

defense of any action on a bond.

(g) Pay a fee or rebate or give or promise anything of value to the principal or anyone in his or

her behalf.

(h) Participate in the capacity of an attorney at a trial or hearing of one on whose bond he or

she is surety.

(i) Loiter in or about a jail, courthouse, or where prisoners are confined.

(j) Accept anything of value from a principal for providing a bail bond except the premium and

transfer fee authorized by the office, except that the bail bond agent may accept collateral

security or other indemnity from the principal or another person in accordance with the

provisions of s. 648.442, together with documentary stamp taxes, if applicable. No fees,

expenses, or charges of any kind shall be permitted to be deducted from the collateral held or any

return premium due, except as authorized by this chapter or rule of the department or

commission. A bail bond agent may, upon written agreement with another party, receive a fee or

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compensation for returning to custody an individual who has fled the jurisdiction of the court or

caused the forfeiture of a bond.

(k) Write more than one power of attorney per charge on a bond, except in the case of a

cosurety, unless the power of attorney prohibits a cosurety.

(l) Execute a bond in this state on his or her own behalf.

(m) Execute a bond in this state if a judgment has been entered on a bond executed by the bail

bond agent, which has remained unpaid for 35 days, unless the full amount of the judgment is

deposited with the clerk in accordance with s. 903.27(5).

(n) Make a statement or representation to a court, unless such statement or representation is

under oath. Such statement or representation may not be false, misleading, or deceptive.

(o) Attempt to collect, through threat or coercion, amounts due for the payment of any

indebtedness related to the issuance of a bail bond in violation of s. 559.72.

(p) Conduct bail bond business with any person, other than the defendant, on the grounds of

the jail or courthouse for the purpose of executing a bond.

(2) The following persons or classes shall not be bail bond agents, temporary bail bond agents,

or employees of a bail bond agent or a bail bond business and shall not directly or indirectly

receive any benefits from the execution of any bail bond:

(a) Jailers or persons employed in any jail.

(b) Police officers or employees of any police department or law enforcement agency.

(c) Committing trial court judges, employees of a court, or employees of the clerk of any court.

(d) Sheriffs and deputy sheriffs or employees of any sheriff’s department.

(e) Attorneys.

(f) Persons having the power to arrest or persons who have authority over or control of federal,

state, county, or municipal prisoners.

(3) A bail bond agent may not sign or countersign in blank any bond, give a power of attorney

to, or otherwise authorize, anyone to countersign his or her name to bonds unless the person so

authorized is a licensed and appointed bail bond agent directly employed by the bail bond agent

giving such power of attorney.

(4) A place of business, including a branch office, may not be established, opened, or

maintained unless it is under the active full-time charge of a licensed and appointed bail bond

agent.

(5) Except as between licensed and appointed bail bond agents, a bail bond agent may not

divide with others, or share in, any commissions payable on account of any bail bond.

(6)(a) No bail bond agency shall advertise as or hold itself out to be a bail bond or surety

company.

(b) Any misleading or false advertisement or deceptive trade practice is prohibited as provided

in part IX of chapter 626.

(c) The advertisement of reduced premium rates is prohibited.

(d) After October 1, 2002, a bail bond agency may not use a name that implies a reduced rate

of premium.

(e)1. A bail bond agent may not make material misrepresentations or omissions in statements

or use advertisements that constitute material misrepresentations of facts, create unjust

expectations concerning services, or make improper comparisons.

2. Bail bond agents may not own or advertise under firm names that are false, misleading, or

deceptive, or use trade names that imply a connection with any government agency.

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3. A bail bond agent may not use any advertisement or advertise under any name that includes

the word “free”.

4. A bail bond agent may not advertise under a trade name unless the name and address appear

on the agent’s letterhead or business cards. Such name must be registered with the department.

(7) Any permissible advertising by a bail bond agent or agency must include the address of

record filed with the department.

(8)(a) A person who has been convicted of or who has pleaded guilty or no contest to a felony

or a crime involving moral turpitude or a crime punishable by imprisonment of 1 year or more

under the law of any state, territory, or country, regardless of whether adjudication of guilt was

withheld, may not act in any capacity for a bail bond agency or participate as a director, officer,

manager, agent, contractor, or employee of any bail bond agency or office thereof or exercise

direct or indirect control in any manner in such agency or office or own shares in any closely

held corporation which has any interest in any bail bond business. Such restrictions on engaging

in the bail bond business shall continue to apply during a pending appeal.

(b) Any person who violates the provisions of paragraph (a) or any person who knowingly

permits a person who has been convicted of or who has pleaded guilty or no contest to a crime as

described in paragraph (a) to engage in the bail bond business as prohibited in paragraph (a)

commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.

775.084.

(c) Any law enforcement agency, state attorney’s office, court clerk, or insurer that is aware

that a bail bond agent or temporary bail bond agent has been convicted of or who has pleaded

guilty or no contest to a crime as described in paragraph (a) shall notify the department of this

fact.

(d) Upon the filing of an information or indictment against a bail bond agent or temporary bail

bond agent, the state attorney or clerk of the circuit court shall immediately furnish the

department a certified copy of the information or indictment.

(b) Any person who violates the provisions of paragraph (1)(a), paragraph (1)(b), paragraph

(1)(c), paragraph (1)(h), paragraph (1)(k), paragraph (1)(m), paragraph (1)(o), paragraph (1)(p),

subsection (3), subsection (4), or subsection (5) commits a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s. 775.083.

648.442 Collateral security.

(1) Collateral security or other indemnity accepted by a bail bond agent, except a promissory

note or an indemnity agreement, shall be returned upon final termination of liability on the bond.

Such collateral security or other indemnity required by the bail bond agent must be reasonable in

relation to the amount of the bond. Collateral security may not be used by the bail bond agent for

personal benefit or gain and must be returned in the same condition as received. A bail bond

agent may accept collateral security in excess of $50,000 cash per bond, provided any amount

over $50,000 cash is payable to the insurer in the form of a cashier’s check, United States postal

money order, certificates of deposit, or wire transfer and is remitted to and held by the insurer. A

copy of IRS Form 8300 must be retained as part of the defendant’s file if it is otherwise required.

A quitclaim deed for property may not be taken as collateral. Other acceptable forms of security

or indemnity may consist of the following:

(a) A promissory note;

(b) An indemnity agreement;

(c) A real property mortgage in the name of the insurer;

(d) Any Uniform Commercial Code filing; or

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(e) Any other type of security approved by the department. The department may approve other

security only if, after considering the liquidity and other characteristics of the security, it

determines that the security is of a type which increases the probability that the defendant will in

fact appear in court or increases the probability that the defendant will be subsequently

apprehended by the bail bond agent.

(2) When a bail bond agent accepts collateral, a written, numbered receipt shall be given, and

this receipt shall give in detail a full account of the collateral received. The bail bond agent shall

also give copies of documents rendered under subsection (1) to the indemnitor.

(3) Collateral security shall be received and held in the insurer’s name by the bail bond agent in

a fiduciary capacity and, prior to any forfeiture of bail, shall be kept separate and apart from any

other funds or assets of such bail bond agent. When collateral security in excess of $5,000 cash

or its equivalent is received by a bail bond agent, the entire amount shall be immediately

forwarded to the insurer. Such collateral security may be placed in an interest-bearing account to

accrue to the benefit of the person giving the collateral security, and the bail bond agent, insurer,

or managing general agent may not make any pecuniary gain on the collateral security deposited.

Any such account shall be in a depository office of a financial institution located in this state.

The insurer shall be liable for all collateral received. If the bail bond agent or managing general

agent fails to return the collateral to the indemnitor upon final termination of liability on the

bond, the surety shall be liable for the collateral and shall return the actual collateral to the

indemnitor or, in the event that the surety cannot locate the collateral, the surety shall pay the

indemnitor pursuant to the provisions of this section.

(4) When the obligation of the surety on the bond or bonds has been released in writing by the

court, the collateral shall be returned to the rightful owner named in the collateral receipt unless

another disposition is provided for by legal assignment of the right to receive the collateral to

another person.

(5) If a forfeiture occurs, the agent or insurer shall give 10 days’ written notice of intent to

convert the collateral deposit into cash to satisfy the forfeiture to the indemnitor and principal.

Notice shall be sent by certified mail to the last known address of the indemnitor and principal.

(6) The bail bond agent or insurer must convert the collateral to cash within a reasonable

period of time and return that which is in excess of the face value of the bond minus the actual

and reasonable expenses of converting the collateral to cash. In no event shall these expenses

exceed 20 percent of the face value of the bond. However, upon motion and proof that the actual,

reasonable expenses exceed 20 percent, the court may allow recovery of the full amount of such

actual, reasonable expenses. If there is a remission of a forfeiture, which had required the surety

to pay the bond to the court, the surety shall pay to the indemnitor the value of any collateral

received for the bond, minus any actual expenses and costs permitted herein.

(7) No bail bond agent or insurer shall solicit or accept a waiver of any of the provisions of this

section or enter into any agreement as to the value of the collateral.

(8) Prior to the appointment of a bail bond agent who is currently or was previously appointed

by another insurer, the bail bond agent must file with the department a sworn and notarized

affidavit, on a form prescribed by the department, stating that:

(a) There has been no loss, misappropriation, conversion, or theft of any collateral being held

by the agent in trust for any insurer by which the agent is currently or was previously appointed;

and

(b) All collateral being held in trust by the agent and all records for any insurer by which the

agent is currently or was previously appointed are available for immediate audit and inspection

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by the department, the insurer, or the managing general agent, and will upon demand of the

department or insurer be transmitted to the insurer for whom the collateral is being held in trust.

(9) The department shall establish by rule the form of the affidavit and the statement

identifying the amount and source of the security as specified in s. 903.14.

(10) An indemnity agreement may not be entered into between a principal and either a surety

or any agent of the surety, and an application may not be accepted either by a bail bond agent

engaged in the bail bond business or by a surety company for a bail bond in which an indemnity

agreement is required between a principal and either a surety or any agent of such surety, unless

the indemnity agreement reads as follows: “For good and valuable consideration, the

undersigned principal agrees to indemnify and hold harmless the surety company or its agent for

all losses not otherwise prohibited by law or by rules of the Department of Financial Services.”

648.4425 Notice.

(1) Upon issuing a bond, the bail bond agent shall provide to the principal and, if applicable, to

the party rendering collateral or indemnifying the surety an informational notice which shall

include:

(a) A statement noting with particularity the restrictions, if any, placed on the principal as a

condition of the bond;

(b) A statement of the bail bond agent’s powers relating to the cancellation of the bond and

recommitment of the principal; and

(c) The name, address, and telephone number of the department for complaints or inquiries.

(2) Any bail bond agent that surrenders or recommits a defendant must provide the defendant

with a statement of surrender on a department-prescribed form. The statement must be signed by

the agent and must state the reason for surrender. The statement must be attached to the

surrender form with a copy provided to the defendant and a copy maintained by the agent in the

defendant’s file.

(3) The department shall prescribe forms to administer this section.

648.45 Actions against a licensee; suspension or revocation of eligibility to hold a license.

(1) The department shall, upon receipt of an information or indictment, immediately

temporarily suspend any license or appointment issued under this chapter when the licensee has

been charged with a felony or a crime involving moral turpitude or a crime punishable by

imprisonment of 1 year or more under the law of any state, territory, or country. Such suspension

shall continue if the licensee has been found guilty of, or has pleaded guilty or no contest to, the

crime, whether or not a judgment or conviction has been entered, during a pending appeal. A

person may not effect any additional bail bonds after suspension of his or her license or

appointment. However, he or she may discharge any liability on bonds effected prior to such

suspension.

(2) The department shall deny, suspend, revoke, or refuse to renew any license or appointment

issued under this chapter or the insurance code, and it shall suspend or revoke the eligibility of

any person to hold a license or appointment under this chapter or the insurance code, for any

violation of the laws of this state relating to bail or any violation of the insurance code or if the

person:

(a) Lacks one or more of the qualifications specified in this chapter for a license or

appointment.

(b) Has made a material misstatement, misrepresentation, or fraud in obtaining a license or

appointment, or in attempting to obtain a license or appointment.

(c) Has failed to pass any examination required under this chapter.

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(d) Has willfully used, or intended the use, of the license or appointment to circumvent any of

the requirements or prohibitions of this chapter or the insurance code.

(e) Has demonstrated lack of fitness or trustworthiness to engage in the bail bond business.

(f) Has demonstrated lack of reasonably adequate knowledge and technical competence to

engage in the transactions authorized by the license or appointment.

(g) Has engaged in fraudulent or dishonest practices in the conduct of business under the

license or appointment.

(h) Is guilty of misappropriation, conversion, or unlawful withholding of moneys belonging to

a surety, a principal, or others and received in the conduct of business under a license.

(i) Is guilty of rebating or offering to rebate, or unlawfully dividing or offering to divide, any

commission, in the case of a limited surety agent, or premiums, in the case of a professional bail

bond agent.

(j) Has willfully failed to comply with or willfully violated any proper order or rule of the

department or willfully violated any provision of this chapter or the insurance code.

(k) Has been found guilty of, or has pleaded guilty or no contest to a felony, a crime involving

moral turpitude, or a crime punishable by imprisonment of 1 year or more under the law of any

state, territory, or country, whether or not a judgment or conviction has been entered.

(l) Has demonstrated lack of good faith in carrying out contractual obligations and agreements.

(m) Has failed to perform a contractual obligation or agreement with a managing general agent

or insurer which results in an unrecovered loss due to nonpayment of a forfeiture or judgment by

the licensee.

(n) Has failed to return collateral.

(o)1. Has signed and filed a report or record in the capacity of an agent which the licensee

knows to be false or misleading;

2. Has willfully failed to file a report or record required by state or federal law;

3. Has willfully impeded or obstructed such filing; or

4. Has induced another person to impede or obstruct such filing.

Such reports or records shall include only those that are signed in the capacity of a licensed

agent.

(p) Has demonstrated a course of conduct or practices which indicate that the licensee is

incompetent, negligent, or dishonest or that property or rights of clients cannot safely be

entrusted to him or her.

(3) The department may deny, suspend, revoke, or refuse to renew any license or appointment

issued under this chapter or the insurance code, or it may suspend or revoke the eligibility of any

person to hold a license or appointment under this chapter or the insurance code, for any

violation of the laws of this state relating to bail or any violation of the insurance code or for any

of the following causes:

(a) A cause for which issuance of the license or appointment could have been refused had it

then existed and been known to the department.

(b) Cheating on an examination required for licensure or violating test center rules or

examination procedures published orally or in writing at the test site by authorized

representatives of the examination program administrator. Communication of test center rules

and examination procedures must be clearly established and documented.

(c) Violation of any law relating to the business of bail bond insurance or violation of any

provision of the insurance code.

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(d) Failure or refusal, upon demand, to pay over to any insurer the bail bond agent represents or

has represented any money coming into his or her hands which money belongs to the insurer.

(e) Being found to be a source of injury or loss to the public or detrimental to the public

interest or being found by the department to be no longer carrying on the bail bond business in

good faith.

(f) Interfering or attempting to interfere with the administration of justice.

(4) Any licensee found to have violated s. 648.44(1)(b), (d), or (i) shall, at a minimum, be

suspended for a period of 3 months. A greater penalty, including revocation, shall be imposed if

there is a willful or repeated violation of s. 648.44(1)(b), (d), or (i), or the licensee has committed

other violations of this chapter.

(5) Grounds for revocation of the license or appointment exist when any licensee is adjudged

bankrupt or insolvent.

(6) Suspension, revocation, and refusal to renew a license or appointment issued under this

chapter is subject to the procedures provided in s. 648.46.

648.46 Procedure for disciplinary action against licensees.

(1) The department shall investigate the actions of a licensee when it receives a written

complaint containing allegations of fact that, if true, show that a violation of this chapter, or a

rule adopted pursuant thereto, has occurred. The department shall also investigate a licensee if

the department is made aware that a possible violation of this chapter, or a rule adopted pursuant

thereto, has occurred. If the department determines that a violation of this chapter or a violation

of a rule adopted pursuant to this chapter has occurred, the department may file a formal

complaint against the licensee and prosecute under chapter 120.

648.48 Witnesses and evidence.

(1) With respect to the subject of any examination or investigation being conducted by the

department, the agent or examiner appointed by the department may administer oaths, examine

and cross-examine witnesses, and receive oral and documentary evidence and shall have the

power to subpoena witnesses and compel their attendance and testimony and require by

subpoena the production of documents or other evidence which is deemed relevant to the

inquiry.

648.49 Duration of suspension or revocation.

(1) The department shall, in its order suspending a license or appointment or the eligibility to

hold a license or appointment, specify the period during which the suspension is to be in effect,

but such period may not exceed 2 years.

648.50 Effect of suspension, revocation upon associated licenses and licensees.

(3) No person whose license as a bail bond agent or temporary bail bond agent has been

revoked or suspended shall be employed by any bail bond agent, have any ownership interest in

any business involving bail bonds, or have any financial interest of any type in any bail bond

business during the period of revocation or suspension.

648.51 Surrender of license.

(1) Though issued to a licensee, all licenses issued under this chapter are at all times the

property of the state, and upon notice of any suspension, revocation, refusal to renew, failure to

renew, expiration, or other termination of the license, such license shall no longer be in force and

effect.

(2) This section shall not be deemed to require the surrender to the department of any license

unless such surrender has been requested by the department.

648.525 Civil assessment.

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(1) The department may initiate a civil administrative proceeding against a licensee who fails

to comply with the solicitation requirements of this chapter.

(2) The burden of proof in such proceedings is by a preponderance of the evidence. Upon a

finding that a licensee has failed to properly comply, an assessment of $5,000 shall be ordered

for each act of improper solicitation which assessment shall be payable within 30 days after the

date of the final order.

(3) The civil assessment is a civil remedy for conduct that harms the consuming public and that

is considered an unfair method of competition, and is not a penalty or administrative fine.

Remedies under this section are in addition to any other remedies available at law.

648.53 Probation.

(1) If, pursuant to the procedure described in s. 648.46, the department finds that one or more

causes exist for a fine, or for the suspension of, revocation of, or refusal to renew or continue any

license or appointment issued under this chapter, the department may, in lieu of or in addition to

such suspension, revocation, or refusal or in connection with any administrative monetary

penalty imposed under s. 648.52, place the offending licensee on probation for a period, not to

exceed 2 years, as specified by the department in its order.

(2) As a condition to such probation or in connection therewith, the department may specify in

its order reasonable terms and conditions to be fulfilled by the probationer during the probation

period. If during the probation period the department has good cause to believe that the

probationer has violated such terms and conditions or any of them, it shall forthwith suspend,

revoke, or refuse to renew or continue the license or appointment of the probationer, as upon the

original causes referred to in subsection (1).

648.55 All bail bond agents of same agency; licensed by same companies.

All bail bond agents who are members of the same agency, partnership, corporation, or

association shall be appointed to represent the same companies. If any member of such agency,

partnership, corporation, or association is licensed and appointed as a professional bail bond

agent, all members thereof shall be so licensed and appointed. It is the responsibility of each

insurer to require that each bail bond agent in an agency is appointed to represent that insurer.

648.57 Penalty.

Any person or corporation, who is found guilty of violating any of the provisions of this

chapter commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s.

775.083, unless a more severe criminal penalty is otherwise provided in this chapter with respect

to the specific violation.

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