Time to take next step in making RI’s bail system more fair | Opinion

• A Rhode Island bail bondsman attempted to charge a defendant’s family an illegal nonrefundable fee instead of posting the required bail money.
• Rhode Island’s bail system disproportionately impacts low-income individuals who often rely on bondsmen and lose money even when charges are dropped.
• While Rhode Island has made progress in reforming court costs, a comprehensive review of the bail system is necessary to address its inherent flaws.

Katie Mulvaney’s article “Well-known bondsman is rebuked by RI judge” (News, Feb. 7) may have been shocking to many, but it was no surprise to those who work in the criminal justice system.

The facts of this case are troubling. Rather than post the bail money he collected from the defendant’s family ‒ which would be returned to them after the defendant appeared in court and the case was closed ‒ the bondsman attempted to pocket a portion of it as a nonrefundable fee.

And while no criminal wrongdoing has been reported thus far (indeed, the quasi-judicial officer caught up in this unfortunate incident, attorney/bail commissioner Frank Saccocia, appears to have acted appropriately by promptly reporting the incident), a serious violation of court rules appears to have taken place.

By way of background, both bail commissioners and bondsmen fill essential roles in our criminal justice system. The former serve as quasi-judicial officers, appointed by the chief judge of the District Court. They are empowered to set personal recognizance or security bail, or, in more serious matters, hold a defendant without bail until the next court day. This is done during non-business hours at the police station in a proceeding referred to as a “special arraignment.” The latter ‒ the bondsmen ‒ are private business entities who, for a nonrefundable fee, post property to ensure a defendant’s release. (This bondsmen arrangement is different from the situation where a defendant or their family posts the full value of the bail themselves.)

Thus, the cost of bail falls hardest upon those least able to bear it: the indigent and poor. Those unable to post bail without the assistance of a bondsman are forced to pay money that will never be recovered ‒ a system that is inconsistent with the idea of the presumption of innocence. Indeed, studies show that monetary conditions of bail often lead to a wealth-based detention gap, with the poor suffering additional collateral consequences ‒ such as the loss of housing, employment and education ‒ as they linger in detention facilities.

The pervasive infiltration of money in our criminal justice system invites abuse, leading to situations like the one discussed in Ms. Mulvaney’s article. For example, even when a defendant can post the full amount of bail at a special arraignment, they still must remit a nonrefundable fee. Requiring a defendant to pay an extra fee for judicial services and due process is, at best, unseemly and, at worst, unfair.

Rhode Island “bail law” is composed of an interrelated mesh of state constitutional provisions, statutes, and court decisions and rules. Compared to other states, Rhode Island’s laws certainly have some redeeming qualities. For example, release on personal recognizance ‒ a practice that is consistent with the presumption of innocence ‒ is favored in most cases, especially the less serious ones. Moreover, the courts’ websites contain forms that require judges to explain why personal recognizance is not appropriate before setting monetary conditions of bail; although it appears that this obligation is most often honored in the breach.

Over the last several years, the General Assembly and judiciary have made tremendous progress in reforming the court cost system. The days when people were detained for failure to pay such costs are, thankfully, over. More recently, the courts have improved the ways that restitution is collected and the system is now more efficient.

Therefore, the time is ripe to take the next step: a comprehensive evaluation of our bail system.

Each year dozens of bills are considered by the General Assembly on this topic. A special task force, composed of a variety of criminal justice stakeholders, should be formed to study and make recommendations for improvements to a system that ‒ while at times good ‒ could certainly be made better.

Michael A. DiLauro is owner and manager of The Just Criminal Justice Group.