the cost of freedom: profiting off arrests bail bonds
TRANSCRIPT
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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Bibliography
Ahsan, Kamil. The Instantaneous Injustice of Bail. For Chicago's Poor, Who Can't Afford
Attorneys, Bail Hearings Often Don't Last Longer Than A few Seconds-And May Keep
Them in Jail for Want of A Few Hundred Dollars. The American Prospect, May 2017.
Ares, Charles E. The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole.
38 N.Y.U. Law Review, 1963.
Austin, James, Bhati, Avi, Jones, Michael, and Ocker, Roger. Florida Pretrial Risk Assessment
Instrument. Report. The JFA Institute, 2012. https://www.pretrial.org/download/risk-
assessment/FL percent20Pretrial percent20Risk percent20Assessment percent20Report
percent20(2012).pdf.
Bah, Abdulai. 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.
Baker, Shannon M., Vaughn, Michael S., & Topalli, Volkan. 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.
Billings, Thanithia. Private Interest, Public Sphere: Eliminating the Use of Commercial Bail
Bondsmen in the Criminal Justice System. Boston College Law Review. Newton Centre
57.4. 1337-1365, 2016.
Bradach, Eric. Metro. Foxx: Bail bonds burden taxpayers, victimize poor people. University
Wire. Carlsbad, March 13, 2017.
Brummer, Bennett H., & Rogow, Bruce S. An End to Ransom: The Case for Amending the Bail
Provision of the Florida Constitution. 6 Fla. St. U. L. Rev., 1978, edited in 2014.
http://ir.law.fsu.edu/lr/vol6/iss3/9.
Chen, Michelle. Our Bail-Bond System Is Broken. The Nation, May 12, 2017.
www.thenation.com/article/our-bail-bond-system-is-broken/.
Covert, Bryce. 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/.
Covert, Bryce. The Injustice of Cash Bail. The Nation, November 6, 2017.
Doyle, Charles. Bail: An Overview of Federal Criminal Law. CRS Report. Congressional
Research Service, July 31, 2017. https://fas.org/sgp/crs/misc/R40221.pdf.
Basta
95
95
Ehrenfreund, Max. How bail punishes the poor for their poverty. Weblog post. Washington Post.
WP Company LLC d/b/a The Washington Post. Feb 13, 2015.
Gerstein, Charlie. Plea Bargaining and the Right to Counsel at Bail Hearings. Michigan Law
Review Vol. 111, No. 8 pp. 1513-1534. Journal Article, June 2013.
Goldkamp, John S. The Effects of Detention on Judicial Decisions: A Closer Look. 5 Just. Sys.
J., 1980.
Heaton, Paul, Mayson, Sandra, & Stevenson, Megan. The Downstream Consequences of
Misdemeanor Pretrial Detention. Stanford L. Rev., March 2017.
Justice, Vera Institute of. Incarceration Trends. Vera Institute of Justice.
trends.vera.org/profile?fips=12001&incarcerationData=all.
Kellough, Cail & Wortley, Scot. Remand for Plea: Bail Decisions and Plea Bargaining as
Commensurate Decisions. Brit J. Criminology, 2002.
LaFountain, Robert C. Examing the Work of State Courts: An Analysis of 2008 State Court
Caseloads, 2010.
Natapoff, Alexandra. Misdemeanors. 85 S. Cal. L. Rev, 2012.
Noonan, Margaret E. 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.
Ofer, Udi. 9 Makor Insurance Companies are Profiting the Most off 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.
Piquero, Alex. Cost-Benefit Analysis for Jail and Alternatives to Jail, Tallahassee, Florida,
Florida State University, 2010.
Rabuy, Bernadette and Kopf, Daniel. Detaining the Poor: How Money Bail Perpetuates an
Endless Cycle of Poverty and Jail Time. Prison Policy Initiative, May 10, 2016.
www.prisonpolicy.org/reports/incomejails.html.
Sacks, Meghan, Sainato, Vincenzo, & Ackerman, Alissa. Sentenced to Pretrial Detention: A
Study of Bail Decisions and Outcomes. American Journal of Criminal Justice. Vol. 40
Issue 3, September 2015.
Schnacke, Timothy R., Jones, Michael R., & Brooker, Claire M. B. The History of Bail and
Pretrial Release. Pretrial Justice Institute, September 24, 2010.
Smart, Carl, and Perry, Lanard. Low and Moderate Risk Bail Bonds Pilot Program for Alachua
Basta
96
96
County Presentation. Agenda Item #6. AC Board of County Commissioners.
http://alachuacofl.civicclerk.com/Web/GenFile.aspx?ar=1726.
Smart, Carl, and Perry, Lanard. Court Services Presentation. Community Bail Bond Program,
Low & Moderate Risk. March 27, 2018.
http://alachuacofl.civicclerk.com/Web/GenFile.aspx?ad=9376.
Stephen, James Fitzjames. A History of The Criminal Law of England, 1883 Ed.
U.S. Courts. Supervision 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.
VanNostrand, Maria. 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_Ma
rch_2013.pdf.
Vice, director. Inside America's For-Profit Bail System. YouTube, 21 Jan. 2016.
www.youtube.com/watch?v=TGomdoO368g.
Williams, Marian R. The Effect of Attorney Type on Bail Decisions. Criminal Justice Policy
Review, December 22, 2014.
Williams, Virgil L. Nine Reasons to go Slow on Bail Bond Reform. Criminal Justice Review.
Sage Publications. Vol. 3 Issue 1, p9-16, 8p, May 1978.