There are at least four methods of pretrial release: (1) release on own
recognizance (ROR) where the Defendant is released purely upon his promise to
appear as directed or he is liable for the amount of bail set (a few states have
no set bail amount on ROR.), (2) cash bail (Defendant posts full amount of
bail.), (3) surety bail (A private party guarantees appearance of defendant in
court, otherwise pays the court the full amount of the bail.), and, the subject of
this report, (4) deposit bail (Defendant pays a small percentage of the bond
set.). Of all the above methods of pretrial release, deposit bail is the least
In the classic form, 10% cash deposit is simple. The defendant posts
with the court, cash in the amount of 10% of the penal sum of the bail. If all
court appearances are made, the defendant is refunded 90% of the deposit with
the court keeping the remainder. If the defendant fails to appear, the court
keeps all of the deposit and has the right (and duty) to collect the remaining
The supposed financial windfall to the court – the forfeiture of the cash
deposit upon the Defendant’s failure to appear is illusory, because it is offset
by the cost of each failure to appear (FTA) and the loss is magnified by the
government not going after the remainder (90%).
The cost is not only fiscal. Cash deposit bail spawns a high number of
Defendants who fail to appear and who, as fugitives, in turn prey on local
citizens driving up the community’s crime rate.
These two failures associated with the 10% cash deposit bail program,
financial loss and increased crime, are driven by the FTA rate. These problems
will be demonstrated in this report to be the inevitable result of the 10% cash
deposit bail system.
Wherever they have been tried, 10% deposit bail programs have
produced three phenomena:
I. HIGH FAILURE TO APPEAR RATES.
One need only review a few historical examples, from diverse
geographical areas, to conclude that far too many people
released on deposit bail simply don’t come back to court.
a. Illinois became the first state to adopt the 10%
cash deposit approach. The Illinois Criminal
Justice Information Authority reports that the
failure to appear rate is 21% for women and 30%
b. Oregon passed a 10% deposit bail Bill. A later
comprehensive study showed that over 40% of
those so released failed to appear.
c. California is probably the most persuasive reason
for deciding against 10% cash deposit bail. After
the completion of a comprehensive deposit bail pilot
project California concluded that (1) deposit bail did
not alleviate jail overcrowding, (2) commercial
bonds were more successful in assuring
reappearance of defendants, and (3) taxpayers
carried a significantly higher financial burden with
d. New Jersey had a 10% program for years. In 1995
the legislature dismantled the program because of
its horrendous failure.
e. Other States Recent Refusals: a number of other
states in recent sessions (Texas and Minnesota, for
two examples), have turned down 10% cash
deposit proposals after finding that such programs
create not only crime increases but huge local
As just one proof of the fact that persons released on deposit
bail are less apt than those out on a surety bond to make
their court appearances, please see Exhibit A. This data,
compiled by the Department of Justice’s Federal Bureau of
Justice Statistics, is conclusive; it is a several year composite
of data gathered on 60,000 state case defendants closely
“tracked” for missed court appearances and re-arrests.
II. ESCALATES CRIME RATE.
Deposit bail programs are proven to be public safety
There is no question that persons released pretrial via a 10%
cash deposit program commit more crimes than persons
released on a commercial, private sector bond. And the
recidivism differential is considerable.
In Illinois a state criminal justice research project showed
deposit bail release re-arrest rates of 17% for women and
39% for men. For commercial bond releases, however a
nationwide study of enormous scope shows that the re-arrest
rate is only 9%.
Notice Exhibit B, taken from another U.S. Justice
Department report. This table reveals that persons released
on deposit bail are almost twice as apt to be rearrested while
released than are persons who are released on a surety
Experts in the field all agree: there is a direct correlation
between the number of bail fugitives at large in a community
and the number of serious crimes committed there.
Deposit bail programs breed bail fugitives at large and
thereby increase the number of crimes committed. Referring
again to Exhibit A, one sees that persons remaining a
fugitive after one year are one third higher for deposit bail
fugitives than is the case for surety bond releases.
When a deposit bail Defendant fails to appear, who goes after
him? Nobody. Local law enforcement has too many pressing
priorities rather than to allocate resources to chasing FTA’s.
Some jurisdictions have thousands of fugitives. For
example, Prince George’s County in Maryland with 30,000,
and Philadelphia with around 50,000 outstanding warrants
for FTA’s. The number for this is yet to be calculated in Ohio
and the few other states where deposit bail is allowed.
Even though deposit bail may appear to make the court
money, it clearly does not; it assuredly makes more crime
victims, and puts more citizens in harm’s way.
III. ECONOMIC UNSOUNDNESS.
The idea that government is better equipped to release and
monitor people accused of crimes rather than the private
sector is a total fabrication. Furthermore, government run
programs are terribly expensive in terms of personnel costs.
No deposit bond program can monitor the day to day
activities of a person after release. Deposit bond fulfills only
half of the equation – thus explaining their dismal failure to
Can this high failure to appear rate be translated into actual
dollars? It can. A very comprehensive study performed by
leading experts in the field of assessing the effects of pretrial
release misconduct on the local justice system was
completed in May, 1997.
This work entitled Runaway Losses, underwritten and
published by The American Legislative Exchange Council,
shows the actual cost to the local system, per failure to
appear, to be $1,273.81. Please see Exhibit C, a copy of the
Executive Summary page from that extensive report.
It’s simple: deposit bail will generate regularly, large
numbers of failures to appear. These in turn, become actual
and substantial monetary losses to the local government, not
to mention the incalculable but obviously enormous cost
attendant to increases in crime certain to follow.
Knowledgeable professionals are in agreement that deposit bail is a misguided
pretrial release alternative. One nationally recognized authority on the subject,
Jerry Watson, Esq. Recently authored a simple paper, The Myths of Deposit
Bail, (Exhibit D) pointing up the several inherent fallacies of the deposit bail
CONCLUSION: a 10% deposit bail program will increase the crime
rate, be fiscally irresponsible and burden the local criminal justice system. It
should not be implemented, and if it exists it should be abolished.