Forfeited Bail: How Much is Forfeited Per Year?

Suppose a criminal defendant posts a surety bond with the help of a bail bond agency. Typically in this case a defendant pays 10 percent of the bail amount to the agency, and the agency promises the court – via surety bond – that the defendant will show up to his required court appearances or else the agency will be on the hook for the entire bail amount. If the defendant fails to appear and cannot be located by authorities or a bail company within a year, that defendant becomes a long-term fugitive.

If all goes according to plan – at least the plan set out in California’s bail forfeiture statute – then the bail agency must forfeit the entire amount of bail to the county where the defendant in question was supposed to appear. How often does this occur? Do bail agencies pay the full amount when their client’s skip an appearance and can’t be located? How much of this money has gone unpaid?

Over a decade ago, a lawyer and self-proclaimed bail expert stated for an LA Times article that the amount of unpaid bail in California is between $100 – $150 million. The article gives no indication of how the lawyer got this figure. The reason why this figure is particularly interesting is because it has reared its head in other stories regarding bail forfeiture over the years, each of which takes the number at face value. For instance, a 2007 article on PrisonLegalNews.org states that LA County missed out on $9.1 million in bail forfeitures from 2001 to 2003, the majority of which one company, Capital Bonding Corp., was responsible. The same article also states the $100 – $150 million figure again, without explaining where it got that figure. Further digging to find out where the writer got these numbers has been fruitless.

More recently, an in depth NPR article on the efficacy of money bail published in 2010 also asserts the amount, writing without explaining that “[i]n California, bondsmen owe counties $150 million that they should have had to pay when their clients failed to show up for court.”

Is this number even close to accurate? There are two sources likely to have the best information to answer this question: bond companies themselves and individual counties. While my next line of research will involve posing questions to both of those entities, for now it is worth coming up with a broad estimate of how much money is owed to California as a whole in forfeited bail per year. This requires data on the rates of failure to appear, the rates of long term fugitive status and the median and average bail amount in California. I am using the long term fugitive rate for my math because it is the closest figure we have that roughly represents the number of cases where a bail agency has to pony up. Although bail can be forfeited for a number of reasons and at almost any time during the procedure, a long term fugitive case will be the most likely case where bail companies will have to pay. I am also assuming that the average figure will be more accurate than the median for purposes of estimating how much forfeited bail is owed.

According to the Public Policy Institute of California, the median bail amount in California is $50,000 – five times larger than the rest of the country. However, also according to the PPIC, average bail in California hovers around $33,000, with the most recently confirmed average being $32,000, calculated in 2012. For my estimate I will use the 2012 average bail amount with the assumption that it has not changed significantly in the last 4 years. According to the same PPIC study, California’s failure to appear rate is 6.6 percent across the board for all offenses.

A trickier figure to nail down is the rate of long-term fugitive status in CA.  The closest data point I found came from a study by Eric Helland and Alexander Tabarrok which states that at the national level – not California alone – 30 percent of failures to appear remain at large for over a year, thus becoming long-term fugitives. For lack of data particular to California, I will use this figure to help with my rough estimate. PPIC has calculated the rate of release on surety bond to be 21.1 percent. With these figures, we are finally ready to crunch an ugly number.

In 2014 there were 1,212,845 arrests in California. I will start with that number and assume 21.1 percent of those arrests result in financial release, getting us down to around 255,910 defendants released on commercial surety bond per year. Let us now assume that of this number, 6.6 percent of them fail to appear – giving us 16,890 failures to appear. Using the nationwide figure, for lack of data, let us further assume that 30 percent of those failures to appear remain at large for over a year, making them long-term fugitives. That gives us around 5,067 long-term fugitives per year whom we can assume had their bail completely forfeited – which means now the bond company is on the hook for that amount. With an average bail amount of $34,000, we can roughly estimate that bail companies should forfeit around $172,278,810 per year to California counties.

Compared to the oft-repeated figure of $150 million – a number that represents the accrued owed money over an unknown period of time – this is a staggering number. And although, as I have admitted, this estimate is very rough, at least one consideration should be discussed, and that is the long-term fugitive rate. Helland and Tabarrok stated that the 30 percent long-term rate is alarmingly high, and there is reason to think that California’s is much, much lower, especially considering the success of bail companies in California and their success at securing and returning defendants who fail to appear.

However, even if we assume the rate of long-term fugitive status is much lower, or halved, and even if we assume that most of those 21.1 percent who secure financial release are released via cash bail and not surety bond, we can still conservatively assume that bail companies are expected to pay California counties tens of millions of dollars per year in forfeited bail.

Do they? I will have to speak to bail companies and the county counsel of various counties to find out. My next post will examine whether either bail companies or individual counties are even keeping track of whether or not this money is being paid.

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