RELEASED ON BOND: A flawed system?

Fadayeen Guy, 34, of Nashville, Tenn., was arrested in Jeffersonville in February 2006 for dealing cocaine, possession of paraphernalia, carrying a handgun without a license and being a habitual substance abuse offender.

After a couple of weeks in jail, a judge in Clark County Superior Court No. 2 set bond at $75,000 court cash, and within a couple of days, someone had posted the $7,500 required to secure his release. Guy was not heard from again until March 2009 when he was detained in Fulton County, Ga. The prosecutor’s office approved extradition, and Clark County Sheriff’s Department officers drove to Georgia to transport Guy back to Indiana.

Guy pleaded guilty in June to possession of cocaine and was sentenced to four years in prison. With credit for time served, he was released.

The $7,500 bond posted on Guy’s behalf was returned, minus $719 for probation and court costs and the Clark County Drug Free fee.

The Nashville Police Department now lists Guy on its Most Wanted list, charging him with probation violation for intent to deal drugs and evading arrest. The practice of setting bail dates back centuries but has underwent numerous changes even within the last 50 years.

Clark County Circuit Court Judge Dan Moore said that every defendant has the right to post bond, except in murder cases. Under Indiana Code when setting bond, judges are to consider a defendant’s flight risk and the safety of the public.

In recent years, court cash bonds have become more popular and are now used frequently in Clark County. Under that system, a defendant pays a 10 percent deposit of the amount of bail. Critics argue that the court cash bonds are misleading since defendants are never held accountable for the full amount of the bond.

Tony Widgery, president of the Indiana Surety Bail Agents Association, says that some counties require anyone posting bond to sign papers that holds them liable for the full amount of the bond. Clark County does not.

“As with a car loan or anything else, collecting a judgment can be like squeezing blood out of a turnip,” said Deborah Neal, staff counsel for the Indiana Public Defender Commission.

Widgery said the only county that he knows of that has attempted to go after the remaining 90 percent is Marion County.

“Marion County failed due to insolvent signers and defendants,” Widgery said. “Because there are no requirements or qualifications to sign on a bond, it is not a true bail bond.”

Wigdery points to the Indiana Constitution which states, “Offenses, other than murder or treason, shall be bailable by sufficient sureties.”

Since the 10 percent deposit does not require sufficient sureties, he argues, “I feel it is unconstitutional. In addition, because there is no one held accountable, there is no incentive for the defendant to go to court.”

Bail bondsmen have mostly gone out of business in counties that use court cash since bondsmen usually charge a 10 percent fee even if a defendant appears at all hearings. Bondsmen must pay a late surrender fee if the defendant fails to show up in court for a hearing. If the defendant has not returned after one year, the late surrender fee is 80 percent of the full amount of the bond.

Neal said there are many benefits to cash bonds, including that it allows counties to collect certain fees. Neal said a study from 2008, in which 31 percent of Indiana counties responded, showed that 47 percent of the $5.3 million collected from cash bonds that year went to the county.

Clark County charges a $164 fee for court costs whenever a defendant is convicted.

A 2007 report from the Bureau of Justice Statistics studied felony defendants released from jail prior to trial from 1990 through 2004 in the 75 largest counties in the nation. It found that 30 percent of defendants released on an unsecured bond, or cash bond, failed to appear in court. About 18 percent of those who posted a surety bond failed to appear, while only 14 percent of those who posted a property bond failed to appear.

About 10 percent of those who posted an unsecured bond remained a fugitive after one year, while three percent of those released on surety bond was still wanted after a year.

“It’s been my experience that the court cash system of bonds allows people to be free without being liable for the entire amount of the bond. I would welcome change in which someone would be held liable for the full amount of the bond rather than the 10 percent,” Clark County Chief Deputy Prosecutor Jeremy Mull said.

Moore said it would be worth reviewing the practice of setting court cash bonds instead of full cash bonds.

“We’re in a transition. The court cash bonds have been an outgrowth of the old bail bonds system,” Moore said.

In recent months, the Clark County Sheriff’s Department has traveled to New York, Florida, Ohio and Illinois to pick up defendants who are wanted on warrants and arrested in another state.

The gas charges and overtime hours for the two officers who are required to make the trip are paid for by county taxpayers, according to Sheriff Danny Rodden.

Under the system of surety bonds, bondsmen would make the decision whether to transport fugitives or pay the late surrender fee.

Superior Court No. 3 Judge Joe Weber said failure to appear is not a major problem in Clark County.

“It’s usually a short term thing. A good portion of the people that don’t show up, it’s because they are being held in another county,” he said.

County Clerk Barbara Bratcher Haas said a 10 percent deposit has never been forfeited in Clark County since she was elected. Judges and prosecutors say it would require a motion by the prosecutor and then a hearing. The money collected would go to a state education fund, Mull said.

Mull added that the prosecutor’s office does not have time or resources to go through the paperwork and process required to forfeit a bond.

Are bonds high enough in Clark County?

Holly E. Odle, 27, of Charlestown, has been arrested seven times in the last year.

Five times were for operating a vehicle while intoxicated, including three times in one month. According to police records, she has a history of abusing prescription medication.

In one case in March, she crashed into another vehicle after allegedly looking at her cell phone. Blood tests revealed she had benzodiazepines, THC, opiates, methamphetamine and oxycodone in her system. Another time, she was found to have marijuana in her system.

Odle was charged with neglect of a dependent in September after her 3-year-old daughter was allegedly found walking by herself in the neighborhood. Each time, Odle was released after posting $1,000 cash bond or less.

After her latest arrest in December for operating while intoxicated and attempted escape from home incarceration, the case was moved from Superior Court No. 3 to Superior Court No. 1. She is now being held on $10,000 cash only bond. A hearing was held on Feb. 4 in which she requested to be released on recognizances, but Judge Vicki Carmichael denied that motion.

Indiana State Police troopers and attorneys who work in multiple counties say that Clark County judges set some of the lowest bonds in the region.

A bond schedule allows a defendant to post bail without going before a judge. In Clark County, an in-state resident can post $7,500 for release on a class C felony drug charge or crime against property, $5,000 on a class D felony, $1,000 for a class A misdemeanor, $750 for a class B misdemeanor or $500 for a class C misdemeanor. Anyone charged with a higher felony must go before a judge.

In Floyd and Scott counties, anyone charged with any felony must go before a judge. Washington County’s bond schedule is less for some offenses, but unlike Clark County, they do not allow out-of-state residents to post bond before seeing a judge. Washington County also does not allow any court cash bonds.

“Bonds are not high enough to get (defendants) to reappear. We routinely ask for higher bonds,” Prosecutor Steve Stewart said. “It’s not just an issue of them reappearing for trial but them posing a risk to the community.”

One recent case that prosecutors took issue with was that of Jerry B. Simms II. He was charged with class C felony battery resulting in bodily injury after allegedly hitting another man repeatedly in the face with a hammer breaking his jaw and knocking out his teeth.

Prosecutors argued Simms tried to flee the country. Simms’ attorney, Perry McCall, argued that Simms had already made arrangements to travel to Canada to see his girlfriend when he learned of a relative dying in Jamaica.

Simms was detained after flying to Jamaica without a passport and then deported to Canada where they discovered his warrant. He was held in Niagara, N.Y., where Clark County transport officers traveled to bring him back to Indiana.

Judge Moore reduced bond from $7,500 cash only to $25,000 court cash.

Judges say that bond should never be used as punishment and that their job is to remain fair and impartial.

“I’m sure you could find counties with higher bonds,” Judge Weber said. “I don’t necessarily want to be the county with the highest bond. I’ve seen courts set what I think are abusive bonds. I’d rather be the county with appropriate bonds.”

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