For the Defense - Vol. 7, Issue 4 - 31

practices across the state and in each county.16
In Lancaster
County, for instance, cash bail was set in 45.1% of criminal
cases over this period,17
$56,862.00,18
it was never posted.19
and in 64.7% of the cases where cash bail was set,
While these numbers are all higher than
state averages,20 the picture is more-or-less the same no matter
where you are in the Commonwealth. Bail is not being set at
reasonably attainable amounts, and it is operating to keep our
underprivileged neighbors incarcerated.
Bail funds are a community's way of responding to this
constitutional crisis. Not all bail funds operate the same way,
but they all differ from bail bondsmen in that bail funds provide
their service at no cost to the accused. In contrast, the bail bond
business is a for-profit industry which capitalizes on the wide
use of cash bail in our criminal legal system.21
bail bond insurance companies,22
Backed by large
your local bail bondsmen are
insurance producers who author surety bonds in exchange for
a nonrefundable fee. Although it is an unregulated business in
the sense that there is no cap on the amount of money a bail
bondsman can charge, the typical fee is somewhere between
five and ten percent of the bail amount. The industry is regulated
as specified in 42 Pa.C.S.A. § 5741, et seq.
While people imprisoned on an unattainable bail amount
nonetheless have the option of purchasing their freedom
through a bail bondsman, there is a dearth of people who can
do so. Afterall, 32% of Americans cannot afford an unexpected
expense of $400,23
let alone five to ten percent of $56,862.00.
It's no wonder, then, that we see even " low " bail amounts
causing prolonged pretrial incarceration. In their Bail Report,
for instance, the ACLU-PA reveals that in about a quarter of the
cases in which bail was not posted statewide, bail was set at
$5,000.00 or less.24
Bail funds work to fill this critical gap. Some bail funds-
like Lancaster Bail Fund's predecessor organization which was
operated by a religious congregation in the 1970s-use realty
to free people. Most bail funds, however, crowdfund and use
their collected donations to post the entire amount of a person's
bail-or a percentage of the bail, where a percent is set pursuant
to Pennsylvania Rule of Criminal Procedure 528(C)-in cash. It
may seem exceedingly obvious, but when it comes to cash bail,
cash is king.25
The rules make clear that " owners of cash " . . .
" shall be qualified to act as sureties " .26
Receiving the same treatment under the law as if a family
member or a friend posted bail on an accused person's behalf,
bail funds are " third party sureties " and are regulated as
specified in 42 Pa.C.S.A. § 5750 and Pa. R. Crim. P. 531.27
Bail
funds are also inherently " regulated " by how much money is in
the bank. But because bail money is returned at the end of the
criminal case, the same funds can be used repeatedly to help
more and more people.
Since co-founding the Lancaster Bail Fund in May 2021, a
question I am often asked is how much money we lose because
of violated bail conditions. To date, the answer is none. Out of
the $26,950.00 we've posted for sixteen people since we began
operations, exactly zero dollars have been forfeited. Part of the
reason behind this is that third party sureties are not " on the
hook " when an accused person violates just any condition of
bail. The statutes and rules limit " the grounds for which bail
might be forfeited by a third-party surety to the defendant's
failure to appear for a court proceeding. " 28
speaking, people tend to appear for court.
And, generally
the average amount of cash bail was
One of the largest studies on court appearances to date found
that more than three-quarters of accused people show up to
all their court dates.29
And most people who miss a court date
appear in court within a year after their warrant is issued such
that, following a one-year study, only six percent of criminal
defendants had active bench warrants at the end of the study.30
The statutory scheme on forfeitures outlines a sliding scale
governing the return of bail money in cases involving a failure
to appear. Specifically, if an accused person appears in court
within ninety (90) days of failing to appear, the surety is entitled
to recover the full amount of bail.31
Thereafter,
(i) If the defendant is recovered between the 91st
day and six months after the order of revocation or
forfeiture, the surety shall recover the full value of the
forfeited amount of the bond, less an administrative
fee in the amount of $250.
(ii) If the defendant is recovered between six months
and one year after the order of revocation or
forfeiture, the surety shall recover 80% of the value
of the forfeited amount of the bond.
(iii) If the defendant is recovered between one and
two years after the order of revocation or forfeiture,
the surety shall recover 50% of the value of the
forfeited amount of the bond.32
This explains how-while two out of the sixteen people we've
posted bail for have missed hearings-the Lancaster Bail Fund
has not been subject to any forfeiture actions.
Here are some other ways the Lancaster Bail Fund likes to
measure its successes: Using a person's next court date as a
reference point, we prevented 192 days of unnecessary jail
time, saving taxpayers approximately $20,584.32.33
Of the ten
cases that have been resolved: two cases resulted in complete
dismissals of all charges; one case resulted in ARD; and, the other
seven resulted in guilty pleas to some or all offenses-including
reduced offenses. However, not one person was sentenced to
any further period of incarceration.
In light of these results, we once had a donor ask if we select
the people who we post bail for based on the strength of their
chances in court. The answer to that question, which is hopefully
obvious to the readers of this circulation, is no. Whenever we
receive a referral or otherwise identify a potential candidate,
we first determine whether the person is bailable and, if so,
whether we can afford the bail amount.34
Next, we put it to a
vote of the Board of Directors. If the Board votes unanimously
to post, we post. We assess each person holistically and do not
make any decisions based on charges, criminal history, or any
other factor.
The reason the people we have bailed out experience positive
case outcomes is that, as anyone who has spent any time in the
trenches will know, when your client is at liberty pending the
adjudication of their charges, chances are they will fare better in
court than their incarcerated counterparts. For one thing, people
who are at liberty do not have to decide between pleading
guilty and going home. Pretrial incarceration is one of the
many tools at the disposal of the prosecution used to bludgeon
criminally accused people out of exercising their rights, leading
many to accept bargains they might not otherwise entertain.
Additionally, people at liberty have more time, resources, and
opportunities to demonstrate they are worthy of a little grace.
Vol. 7, Issue 4 l For The Defense 31
For the Defense - Vol. 7, Issue 4

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