Indiana’s Judicial CASH BAIL SCAM: Selling Out Public Safety, Criminal Defendants, Public School Kids And First Responders In Order To Enrich The Treasury Of Judges

On any given day in Indiana, judges are using the money bail system against criminal defendants and the public not for the purpose for which bail was intended, guaranteeing appearance in court or protecting public safety, but instead solely in order to enrich the treasury of the judiciary and its judges and staff. 

In Indiana, the law currently allows judges to require criminal defendants to post what is called a 10% to the court bond.  For example, a judge sets a $10,000 bond for a defendant, but makes it a 10% to the court bond so the defendant is forced to post $1,000 cash to the court.  By doing that, a defendant cannot use a bail bonding agent to post the bail, and instead must directly give the court $1,000 in cash.  When defendants fail to appear, however, the remaining 90% is never collected.    

In contrast, some judges are now opting out of requiring a 100% secured bond – the process of requiring defendants to either post the entire 100% face value of the bond in cash or by surety (using a bail agent to post a bond obligating the agent to pay 100% of the face value of the bond should the defendant fail to appear).  When defendants fail to appear in court on a secured bond, the forfeitures dollars then paid by bail bonding agents (100% of the face value) who are unable to return a defendant to court will go to the common school’s fund and pension fund for first responders. 

When a judge requires only a 10% to the court bond, however, the forfeited cash funds go to the judges themselves, who then are able to allocate and use the money as they see fit.  By so doing, judges in Indiana are: (1) leaving 90 cents on the dollar uncollected; and, (2) denying the common school fund and the pension funds the measly 10% of the total that the judges keep for themselves. 

This scheme is nothing new…and Indiana is starkly similar to that in Carliste v. Cantrell, a case from the U.S. Fifth Circuit of Appeals where the ruling unanimously affirmed that when local judges receive funding based on the judicial decisions they make regarding bail and conditions of release, they violate the due process clause as both “administrators” and within their discretion “generators” of their own revenue.  Similar to Carliste, judges in Indiana have an incentive to require 10% of the bond in cash instead of a 100% secured bond specifically so that the cash may be kept and then applied to “various judicial expenses.”

Further, there is no rational basis for 10% to the court bonds other than for collections, particularly when defendants have other options to post a bail bond that are specifically allowed and regulated by the state.  It is black letter law that enriching the state is not a purpose for which bail is offered under the Eighth Amendment.  National research has proven that unsecured or partially unsecured bonds, such as 10% to the court bonds as in Indiana, perform no better than simply releasing defendants on their own recognizance.  In other words, judges may also be imposing excessive bail in some class of these cases.

There is another huge problem as well—when the defendant actually shows up and pleads guilty to the charges or is convicted by a jury, the courts are also keeping the 10% cash bails and applying it to outstanding fines and costs, some which may also be directed to “various judicial expenses.”  In fact, courts have a direct, discretionary incentive to set bail specifically for the purpose of generating revenue for their own expenses and that of other judicial programs. 

How much is generated in Indiana annually for judges, their staff, their programs and their coffers and how much is the common schools and first responders pension funds being deprived due to this scheme?  The public has a right to know.

On the merits, bail bonding agents, who have national arrest powers, do a far superior job in returning defendants to court, but the system in Indiana is rigged to keep defendants away from using bail bondsmen or having to post or secure the full amount of the bond as required.  

The existing system is also dishonest to the public.  The general public will believe that a $10,000 bond was actually posted or fully guaranteed by a bail bonding agent, when in fact a defendant will only have to post 10% of the bond, and the state will never attempt collect the remaining 90%.  Speaking of, the public has a right to know how much uncollected bail is out there.

It is time to stop the judges from robbing public schools and first responder pensions by siphoning cash off of defendants rather than having an unconflicted interest in imposing bails that guarantee appearance and public safety.  The purpose of bail is not to enrich the treasury—but judges in Indiana are doing precisely that, at the cost of public safety and important, key programs that need the money more than the judges of Indiana.