$1.5 million. That was the bond amount set for 37-year-old Jonathan Fulton Smith, who was arrested in connection to a 2018 Bogata arson/homicide case at the end of January.
So, who makes the call on a multi-million dollar number — and what do bail bonds do, anyways?
Not a punishment
Consult state law, and it will show bond is a payment given to the court to temporarily release an accused person until the trial begins. Surety bond is most common: a person other than the defendant accepts liability for guaranteeing the defendant will return to court. There are also cash bonds, or payments made by the defendant, for the complete amount set by the judge.
“The bond is to make sure, or to make assurances, that (the defendant) will show up in court to answer to that offense. That’s why we also use their prior history,” Precinct 5 Justice of the Peace Cindy Ruthart said.
According to state law, bail is essentially governed by five rules: It needs to be high enough that the defendant will comply. It cannot be used as “an instrument of oppression.” The offense — and its circumstances — must be considered. The defendant’s ability to make bail must be clear. And the future safety of the alleged victim and the community must be assessed.
“Maybe (the accused) has not been in trouble before. A bond might be $3,000,” Ruthart said. “But then if he’s had that case, that same type of offense maybe two or three times before, it might jump up to $10,000.”
Magistrate and justices of the peace consider many factors when setting the amount, Ruthart said.
“Sometimes people think that when the nature of the crime is very serious, ‘how come the bond wasn’t higher?’ Well, we’re not supposed to use it as punishment,” she said. “We have to consider those things by law.”
But not everyone agrees with the system.
“I think where we always start is that when we talk about bail, we’re talking about legally innocent individuals. We’re talking about people that have not yet been convicted of anything,” said Jay Jenkins, a project attorney with the Texas Criminal Justice Coalition. “We are really punishing people that we have not proven to have done anything wrong. And when you boil it down like that, we are punishing people because they don’t have money.”
A microcosm of society
The commercialized surety bond system — bail in exchange for a fee — is startlingly unique. In England and Canada, agreeing to pay a defendant’s bond in exchange for money is considered obstruction of justice.
Commercial bail bond companies are active pre-trial in only two countries: the United States and the Philippines. Drive down 1st Street SW in Paris and you’ll encounter several bond businesses.
Keith Flowers is a third-generation bondsman. His father operated the family business, Dollins Bail Bonds, until his grandfather passed away in 1995. He and his father worked together until his father died in 2003, and since 2013, Flowers has run the business himself.
Flowers called the bond business second nature. As a child, he spent a lot of time with his grandfather, visiting the courthouse and the jail, he said.
“It’s a microcosm of society, just like anything else. You’re dealing with folks from all backgrounds, all sexes, all races, all religious backgrounds,” he said.
Flowers described the bond business as more of a cross between an insurance office and a probation office than as the shady characters sometimes portrayed in movies.
“One of the misconceptions about the bond business is, if you look at movies, you portray the bondsman as someone kind of like a loan shark. Sitting around, smoking a cigar in an office somewhere,” Flowers said. “That’s totally 180 degrees opposite of what actually the bond business is.
“At the end of the day, we’re running a business. We’re guaranteeing to a financial aspect that this person will appear in court. And our role is to keep up with these defendants. I mean, there’s a whole lot of behind-the-scenes stuff that people don’t realize that’s going on with bail bonds.”
Bond businesses provide a service to everyone from taxpayers to defense attorneys. People often turn to him to keep up with defendants, he said. It’s a business at the end of the day, but his company is providing a service to the criminal justice system, Flowers said.
“We’ve got a limited number of prosecutors, we’ve got a limited court system. It takes a while for cases to work through the system. Imagine the cost to the taxpayers if every single defendant who was charged with the crime had to be confined in the county jail. I mean, it would be an astronomical cost,” Flowers said.
“When these defendants are in the county jail, the taxpayers are responsible for feeding them. They’re responsible for medical care, they’re responsible for security. They’re responsible for getting them back and forth to court, back and forth to medical services. If they take any prescriptions, they’ve got to provide those, which is a tremendous cost to the system that these folks are confined in if there’s not a means to get these people out.”
No magic bullet
The Texas House approved a bail reform bill in May 2019, one of several bail reform measures filed in the wake of federal court rulings, jail deaths and a shooting that claimed the life of a state trooper. The bill’s author, state Rep. Kyle Kacal, R-College Station, said he worked in coordination with Gov. Greg Abbott’s office. The measure passed in the House on an 83 to 51 vote and was moved to the Senate for consideration.
Kacal’s bill was named in honor of Texas Department of Public Safety Trooper Damon Allen, who was killed in a 2017 traffic stop. The man suspected of killing him was out on a $15,500 bond after allegedly assaulting a sheriff’s deputy.
For bail reform advocates, the goal is often to prevent low-income, nonviolent defendants from staying in jail because they can’t afford their bail bonds while similar defendants with more resources get out. Abbott waded into the fray in 2018 with a proposal to make it harder for violent defendants to walk free.
Bail practices in Texas’ two most populous counties have been deemed unconstitutional by federal judges for discriminating against poor criminal defendants who can’t pay for their release. Jenkins is an attorney in one of these counties, Harris County. He sees the issues as a result of political pressure from previous decades.
“I think the basis of a lot of these issues is in the sort of tough-on-crime ’80s and ’90s,” he said. “As a result of some of the political campaigning around the issue of releasing people from jail, the system evolved to a point to where the practice of the system, the idea of bail, has been perverted in a way. At some point, we lost focus of what the law actually was.”
As Jenkins put it, “There’s no magic bullet that prevents people from being released from committing any other offense.” But he argues the defendants he’s seen in Harris County are less likely to offend while they’re out.
Jenkins has also seen flaws with how bond is set.
“It is not a matter of public safety to keep only poor people in jail,” he said. “If I can’t pay $10 million, setting my bail at $10 million is illegal. A poor person that only has $10, $1 to them is 10% of their net worth. But a wealthy person could have $10 million and 1% of their wealth is $1 million. So setting the arbitrary number without inquiring as to whether the defendant could pay it is what ends up sort of getting us in trouble.”
While Jenkins can’t speak to bail practices in Lamar County, he pointed to other Texas cases where authorities abused the system.
“Not because the judges are talking to these people, these defendants, and finding a number that they can afford. In fact, a lot of times these numbers are picked specifically because they don’t think the defendant can afford it and they don’t want the defendant to get out,” he said.
“People who are leading you to believe that bail reform is some pressing problem don’t really understand the system,” he said. “There’s not people sitting in Texas jails because they can’t post bond. There’s people sitting in the criminal justice system, in jails, because they may have been out on bond previously and they failed to appear.”
When someone calls Flowers’ business, one of the first things his staff does is pull up their background, he said.
“If they’ve been arrested three times and fail to appear in court three times, that’s a high risk situation. That person doesn’t need to be out on bond, right?” he said. “If they fail to appear two or three times, most likely they’re going to fail to appear again. That’s a burden to the court system. That’s a potential loss for the bail bondsman. We know that we’re going to be chasing these people, and these are the people that are prone to commit new offenses.”
‘There for a purpose’
Both Flowers and Ruthart see the need for bonds.
“I mean, is there any perfect system? Probably not,” Flowers said. “I don’t think that there are people who are sitting in jail simply because they can’t afford to post a bond. I know, from my own business. We have all kinds of terms. I look at it as, if someone’s in jail and I can help those people out and it’s not an undue risk for my business, absolutely I’ll help those people out.”
“We do need bonds because we would have to have a huge jail or holding facility if we did not. We can’t afford to house or feed or supervise that many people,” Ruthart said. “So it’s there for a purpose, and it seems to work well.”