Pennington County bail bond system unorthodox?

Published: Jun. 28, 2018 at 7:42 PM CDT
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Bail bondsmen in Pennington County operate virtually risk free under a more than 30-year-old understanding that the courts will not demand payment of a bond when a defendant skips town, KOTA TV has learned.

Under the bail system a judge sets a bail amount a defendant must post with the court to gain release from jail while awaiting court appearances. A bail bondsman offers the defendant a way to make bail without having to come up with the entire amount of the bond. The bondsman takes a non-refundable fee from the accused, typically 10 percent of the bond amount, and signs a surety contract with the court promising to deliver the defendant to court or pay the full amount of the bond if the defendant turns fugitive.

The process is known as forfeiting a bond.

Freed from the prospect of forfeiture, Pennington County bail bondsman collect fees from defendants without fear of penalty -- and sign contracts that will not be enforced, sources told KOTA TV.

No one in any official capacity in Pennington County judicial or law enforcement circles would speak on the record about bail bond forfeiture policies, with most citing a reluctance to upset the court's presiding judge who sets the rules for bail and bail bondsmen.

But in more than 30 conversations with judges, prosecutors, public defenders, bail bondsmen and sheriff's office employees a clear picture emerged of the "operational practices" that have governed the bail industry in Pennington County for more than a generation.

Pennington County this month launched a major drive to replace its bail bond system for lower level, non-violent crimes. "We're trying to replace the bail system with something we believe will be much more effective," said Pennington County State's Attorney Mark Vargo.

The county put on line a Public Safety Assessment tool, or PSA, which takes a data driven approach to determine who should be kept in jail before trial.

"We're working hard to get off our reliance on cash and surety bonds and to make a better actuarial decision about who poses risks to the community and who just doesn't have enough money to get out of jail," said the county's chief public defender Eric Whitcher.

When KOTA TV inquired about broader bond policies in the county it found an opaque system with no clear public accountability.

Neither the courts nor the county keeps any record of how many bail bonds are posted or tracks the disposition of the bonds. No one in the sheriff's office or the court system could locate any record of a bond forfeiture or recall one for more than 30 years.

KOTA TV reviewed 104 Pennington County cases dating back to 2016 in which bond was revoked because the defendant failed to appear in court. The bond amounts ranged from $300 to $5,000. In each case the lawyer assigned to defend the accused became convinced the defendant would not return to court and formally withdrew as counsel. In none of the cases did the court initiate forfeiture proceedings.

The findings don't match practices in nearby Butte County. When KOTA TV asked about bond forfeitures there, the clerk of courts readily located a recent one and forwarded the file to the station.

"We've had our system in place for 25 or 30 years and I think the fact that we're doing the public safety assessment speaks to the fact that we're looking to make changes," Pennington County Sheriff Kevin Thom said. "It's what's worked for us for a long time. It doesn't mean it isn't time to look at some changes."

The "operational practices" that govern the bail bond business in Pennington County evolved in the 1980s when the county jail faced an overcrowding problem, judges, lawyers and law enforcement officials told KOTA TV.

The inmate population then and now is disproportionately Native American, a demographic that was -- and remains -- disproportionately impoverished. The inmates had trouble posting bail or meeting the collateral requirements demanded by the bond industry. The courts turned to the bondsmen for help trimming the inmate numbers. Bail out more defendants -- for 10 percent down -- and the courts will look the other way when a defendant fails to show up for court, they were told, according to sources with knowledge of the conversations.

Whitcher, the public defender, sees a flaw in the argument that the court's only recourse was to free bondsmen from fear of forfeiture.

South Dakota law allows courts to accept less than the full of bond amount to release a prisoner.

"We've been trying hard to improve this system," he said. "One of the things we've been advocating for a long time at the public defender's office is to use what are called clerk bonds. What a clerk bond is, you can deposit 10 percent of a bond amount with the clerk of courts."

Today a defendant can bail out of jail in Pennington County by posting bond with the county -- but only by depositing the full amount of the bond. When KOTA TV asked the sheriff's office staffers responsible for taking bond postings if they accepted clerk's bonds, they said they had never heard of them let alone issued one. One retired Seventh Circuit Court Judge said he never used clerk's bonds and was never told he could.

Clerk bonds offer outcomes that surety bonds from a bondsman don't. A fee paid to a bail bondsman is unrefundable and is not regulated. There is full public accountability of the money posted in a clerk's bond. "That fund is held by the clerk of courts and can be later used to pay fines if there is a conviction, fines, costs, restitution to a potential victim," said Whitcher. "That system is available by statute and is fairer for the public as well as defendants."