Buying freedom: Do Lebanon's bail bondsmen help or exploit the poor?

The young man stood in the cold on Benard Shepp’s doorstep with $200 in hand.

He had been faithfully paying Shepp, his bail bondsman, $200 per week to satisfy a payment plan for a bond that got him out of jail. This week, it was Dec. 22, and he didn’t know how he was going to buy Christmas presents for his children.

Fortunately for him, Shepp believed he was a decent man.

“I said, ‘well, listen. You take 125 (dollars) and buy something for your kids. You take 50 bucks and buy something for your mother. Take 25 and buy something for yourself,’” Shepp said. “He cried.”

Shepp might be the hero of that story, but he admits not all his collection efforts are as charitable. He has interrupted Christmas dinners to find defendants who absconded, and pressured families by threatening to act against property they used as collateral for the defendant’s bond.

“When the family realizes they’ve got to pay the $10,000 or lose their house or something, then the son turns himself in,” Shepp said.

Shepp is one of 44 bail bondsmen registered to get Lebanon County inmates who haven’t yet been convicted of a crime out of jail when the inmates can’t afford their bail. They don’t do it for free. They require a prisoner or their family to pay at least 5 percent of the total bail amount, and they never give that back, even if the defendant shows up for court and complies with all bail conditions.

To some criminal justice reformers, that’s a form of exploiting the poor in an already unfair cash bail system that connects "freedom from jail" with "ability to pay."

“(T)he bail industry has corrupted our constitutional freedoms for profit: the freedom from exploitation in bail, the guarantee of being recognized as innocent until proven guilty, and the guarantee of the equal application of the law to all people,” concluded Color of Change and the American Civil Liberties Union in a May 2017 report.

Reformers convinced New Jersey to launch a largely cash-bail-free system in 2017. More recently, they persuaded Facebook and Google to ban advertising on their sites by bail bondsmen.

But local bond agents say their system is a win-win, helping defendants avoid pre-sentencing jail time while ensuring they will show up for court when justice is ready to be served.

More: What is bail, and how do I 'make' it in Lebanon County?

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An important role?

Due to the slow nature of the criminal justice system, prisoners can languish in jail for months without being convicted of anything. In fact, more than 60 percent of people in American prisons as of 2014 had not yet been tried or convicted of their crimes.

“(T)hose too poor to pay a money bail remain in jail regardless of their risk level or presumed innocence,” according to a report from the Justice Policy Institute.

The Color of Change/ACLU report cited evidence showing that poor people are less likely to be able to get out of prison on bail than other income groups.

Yet Mitch Mitchell, president of the Pennsylvania Association of Bail Agents and the owner of Mitch’s Bail Bonds in Fayette County, challenged the notion that people sit in jail simply because they can’t afford bail. Fayette County, for example, is one of the poorest in Pennsylvania, yet its residents are typically able to post bail, he said.

"Bail is typically set at a reasonable amount commensurate with the offense, but close family and friends in the criminally accused's social network are often the ones that make the decision whether to post bail,” Mitchell said. “Teaching a hard lesson or taking the opportunity to force detox are common themes."

Carter McCue, co-owner of Harrisburg-based Above All Bail Bonds, which does business in Lebanon County, believes his industry actually helps people avoid jail time before a trial by securing their release.

“We’re operating within the guidelines of our legal system that has been operating this way for a long time. How we can be labelled as greedy criminals, I don’t know,” he said.

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Lebanon County District Magisterial District Judge Thomas Capello agreed.

“I don’t see how the system would work without the bail bondsmen,” he said.

Judges don’t think about the possibility of a bail bond when setting bails, Capello said. Instead, they set the appropriate bail to protect victims and prevent flight risks.

“We set bails to the crime,” he said.

Small fish…

When a defendant or her family pays a bail bondsman a small percentage of her bail, the bondsman then signs paperwork in front of a judge that releases the defendant until her court date. If the defendant fails to appear, the courts hold the bail bondsman responsible for the full forfeited bail amount and for bringing the defendant back to court.

In turn, bail bondsman have the power to arrest absconding defendants. The contracts with the defendant’s family typically require collateral that the bondsman can use to recover the cost of forfeited bail.

McCue and Shepp said there are two parts to their job. First, they meet with and vet potential clients to determine if they can pay the fee and if they are a low flight risk. McCue’s clients have ranged from typical criminals to an “international porn star” going through a nasty breakup and several marijuana farms that operate legally in California but were caught selling their product illegally in Pennsylvania.

Second, the bondsmen track down those who don’t show up for court. Both McCue and Shepp say they have eventually found every offender who skipped town and forfeited their bail.

Shepp has travelled as far as Arizona to find absconders. He once searched Philadelphia for a man who skipped court, only to find him back in Lebanon County, a mile from his house, he said.  

Business has declined since he started Shepp’s Bail Bonds in the 1990s, he said. He believes Lebanon County judges are now more likely to release people on their own recognizance. The Lebanon County Day Reporting Center, which opened last October, is a new alternative for certain non-violent offenders who would otherwise have been required to post bail.

…in a big pond

Small businessmen like Shepp might evoke sympathy, but criminal justice reform advocates say there are bigger and greedier interests behind the cash bail system.

Of the 44 bondsmen registered with the Lebanon County clerk of court’s office to execute bonds, only four list addresses in Lebanon County. Many of the rest operate statewide.

But the real money propping up the bail bonds industry, according to the report from Color of Change and the ACLU, are nine insurance companies making massive profits by acting as surety to bondsmen, ensuring that the bondsmen will be able to pay in case bails are forfeited. The insurance industry’s lobbyists have acted as roadblocks to initiatives that would curb the popularity of monetary bail, the report said.

Small business bondsmen like Shepp didn’t have to rely on the insurance companies in the past. He used eight properties he owned as collateral, signing agreements that allowed courts to take legal action against his properties if he failed to pay a forfeited bond.

In 2015, however, the Pennsylvania legislature unanimously passed, and Governor Tom Wolf signed, Act 16, which required all bond agents to be authorized by and work on behalf of an insurance company.

“(They) got rid of us, by a stroke of a pen,” said Shepp, who is now backed by a major insurance corporation.

Both the ACLU and Raging Chicken Press said the bill came about due to the efforts of bail insurance lobbyists.

Raging Chicken Press, a self-described left/progressive website based in Kutztown, described how Pennsylvania Lieutenant Governor Mike Stack advanced the bill when he was a senator while receiving campaign donations from a bail industry lobbyist.

It also limited liability for bail bondsmen to situations where the defendant fails to appear in court, exempting other sources of violations that lead to revocation of bail.

However, the Pennsylvania Association of Bail Agents supported Act 16, which Mitchell as its president said streamlined rules regarding bail bondsmen and ensured they uniformly applied to all agents.

The requirement that agents have surety with an insurance company helps ensure that they fulfill their responsibilities, Mitchell said. If they did not do so, the insurance company would be responsible for either the client appearing for his court dates or forfeiting the full bond amount to the court. The insurance companies can also step in if a bondsman does not have enough liquid money at a given time to fulfill her obligations.

"The insurance companies provide financial security to the counties where their independent agents conduct business,” he said.

Act 16 also included other accountability measures, including a procedure that helps ensure bondsmen pay full bail to the court within 90 days when bail is forfeited because a defendant does not appear in court.

“We want to self-police our own industry,” he said.

Bail insurance may be driven by large financial forces, but for day-to-day bondsman like McCue and Shepp, it's just a second career. Shepp is a former police officer, while McCue once managed the Lebanon-based Ladd-Hanford Auto Group. He wanted a job that would be less routine, and tracking down criminal defendants in hiding fit the bill.

"You have no idea what tomorrow's going to bring," he said.