On weekday mornings in Rapid City, people who have been charged with crimes make their first appearances before judges.

One group, wearing striped uniforms, is herded into a room at the jail to speak with a judge through a video camera.

Another group, wearing civilian attire, enters freely into a courtroom to speak with a judge in person.

All the people in both groups are accused criminals, presumed innocent. Why are some jailed and others free?

In some individual cases, it’s surprisingly simple, and it has nothing to do with guilt or innocence.

Some people get out of jail because they have money, and others stay in jail because they don’t. That is especially true at the misdemeanor, nonviolent end of the criminal spectrum, where some suspects linger in jail for their inability to pay as little as $50 to a bail-bond agent.

That frustrates Eric Whitcher, director of the Pennington County Public Defender’s Office.

“If you have 50 bucks you get out of jail, but if you don’t have 50 bucks you don’t get out of jail?” Whitcher said. “How is that fair? It’s a system, but it’s not a just system.”

The system could soon change. Some leaders in Pennington County’s criminal-justice community want to replace monetary bail in at least some cases with a process known as “risk assessment,” which uses an analysis of a suspect's flight risk and danger to the community to make release decisions without bail or a bail-bond.

Supporters of risk assessment say it’s a fairer way to treat criminal suspects, who are officially presumed innocent but are often jailed for days, weeks or even months before they’re acquitted or convicted, sometimes because of their inability to post bail or bond. Risk assessments can also be used to reduce jail populations and save taxpayers the cost of housing an inmate, which in Pennington County is about $80 per day.

Critics, including those in the bail-bond industry who are engaged in a struggle to protect their livelihood, say risk assessments require additional bureaucracy that could end up costing the county more than reducing the jail population would save. They also say risk assessments are not as effective at compelling court attendance as traditional bail and bail-bonds.

The proposal to introduce risk assessments to Pennington County is included in the county’s application for $4.9 million in grant funding from the MacArthur Foundation’s Safety and Justice Challenge. The county is among 20 national finalists for grants that are expected to be awarded next month.

The overall goal of Pennington County’s application is a 25 percent reduction in its jail population. The 624-bed jail is nearly full some days, and about 75 percent of the inmates are suspects in the pretrial phase of their cases.

Risk assessment alternative

Risk assessment is already used in juvenile justice statewide after Pennington and Minnehaha counties piloted it.

“We’re not reinventing the wheel,” said Pennington County Sheriff Kevin Thom. “Now we just want to apply it to adults."

The process centers around a risk assessment instrument, which is known by its initials, RAI, pronounced as "ray."

A RAI is basically a process, tailored to the jurisdiction where it’s used, that dictates the compiling of information about a suspect’s current charge, criminal history, employment history, local family ties and other factors. A score is generated to indicate the suspect’s potential flight risk and danger to public safety.

“It’s an objective scoring criteria as to where somebody should be placed,” Thom said.

Depending on the score, various actions could be taken along a continuum of options.

Points along that continuum could include jail; a release with some supervision to possibly include electronic bracelet monitoring or regularly scheduled alcohol and drug tests; or an unfettered release until the suspect’s next court appearance. Another option under consideration is a clerk’s bond, which would allow suspects to post bond money with the clerk of courts instead of a bail-bond agent.

The RAIs would likely be conducted by county employees at the time of a suspect’s booking, Thom said.

The proposed budget submitted with the grant application to the MacArthur Foundation includes about $55,000 annually for three years to pay a county risk assessment coordinator to implement the risk assessment process. After three years, according to the budget, that position would be cut and existing employees would continue the program.

The budget also includes annual funding of about $64,000 for a permanent pretrial services position to be created within the Unified Judicial System, the administrative arm of South Dakota courts. That position’s duties would include directing traffic, so to speak, as some pretrial suspects are released from jail and sent toward other alternatives.

Another permanent budget expense starting at $36,500 annually would fund the expansion of electronic monitoring to pretrial suspects. Currently, the county uses electronic monitoring only after a conviction when a judge imposes it as a sentencing condition.

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Thom hopes savings captured from the reduction in the jail population would eventually cover the cost of RAIs and other grant initiatives.

How bail and bonds work

Under the current system, judges set bail amounts for criminal suspects, either through a predetermined schedule for lesser crimes or after a bail hearing for more serious crimes. The amounts range from $100 to more than $1 million, depending on the nature of the crime and the suspect’s perceived flight risk and danger to the community.

Suspects can secure their release by paying the full bail amount to the court, or by having friends or relatives pay it for them. If the suspect shows up for court as scheduled, the bail amount can be refunded, minus any applicable sentencing fines and fees.

If a suspect does not have enough money for bail, the suspect might seek the services of a bail-bond agent. At the Pennington County Jail, a list of agents and their phone numbers is available in the booking area.

For a fee that is typically 10 percent — $50, for example, when bail is $500 — the agent will secure a suspect’s release from jail by posting a bond. A bond is an agent’s promise to pay the entire bail amount if the suspect does not show up for court.

Bail-bond agents must prove that they have the wherewithal to pay the full bail amount if the suspect fails to appear, and many agents have insurance for that eventuality.

Pat Wood’s Sun Surety Insurance Co. in Rapid City is one of a dozen or so bail-bond insurance companies in the United States. He opposes risk assessment and thinks local taxpayers could be saddled with the potentially growing cost of “pretrial services” — the term typically applied to the bureaucracy that oversees suspects on pretrial release.

Wood said that every time a bail-bond agent springs someone from jail, the county saves the $80 per day that it costs, on average, to house an inmate. He said bail-bond agents monitor the suspects they bond out to make sure they show up for court, at no cost to taxpayers.

Some of the seedier aspects of the bail-bond industry, including bounty hunters, are not prevalent in South Dakota, according to Wood. Most people show up for court, he said, and those who do not are typically tracked down by their own bail-bond agent, who might call police for assistance if the suspect will not comply.

Wood said risk assessments have been an expensive failure in some other states, not only for taxpayers, but also for criminal suspects. In some jurisdictions, he said, suspects are released without having to post bail or bond but are then assessed the cost of the electronic monitor they are required to wear, or the cost of the daily drug and alcohol testing they're required to undergo as a condition of their release. 

A shrinking or elimination of the bail-bond industry would cause a loss of jobs, Wood said, and a loss of the bail-bond insurance premium taxes that are paid to state government. State Insurance Division officials said those tax collections are about $15,000 annually, although the officials said ambiguity in reporting makes it difficult to determine if that figure is accurate.  

Courts don't often collect

Supporters of risk assessment have their own examples of jurisdictions where risk assessment has succeeded. They say predicating someone’s release from jail on their ability to pay is fundamentally unjust and discriminatory against poor people and groups with high poverty rates, including Native Americans.

Not only are Native Americans in Pennington County more prone to lack money for a bail-bond, but bail-bond agents are also free to decline Native Americans as clients if the agent considers them a risk to flee to a sovereign reservation.

Critics of monetary bail also dispute the claim that the system saves taxpayers money. There are hidden costs associated with monetary bail, including law enforcement assistance that is sometimes provided to bail-bond agents who need help apprehending a fleeing client. Additionally, courts sometimes absorb the cost of bonded suspects who fail to appear, instead of making bail-bond agents cough up the full bail amount.

In South Dakota, $248,075 worth of bail-bonds were forfeited in 2015 when suspects failed to appear. But the state court system collected only $71,650 — 29 percent of the total forfeited amount — from bail-bond agents.

Bail-bond forfeiture collection is a nationwide problem, according to the Justice Policy Institute, a Washington, D.C.-based think tank.

“Forfeiture rules are, with the help of the industry’s political power, written to give the bail agent nearly endless opportunities to avoid paying forfeitures and make the process labor intensive and complex for the courts,” says an institute report.

Supporters and critics of money bail agree that no matter what system is used to release suspects from jail, some suspects will flee.

For those who support monetary bail, it makes sense to take money from suspects as a kind of insurance against that risk. For those who believe money bail is fundamentally unjust, it makes more sense to apply an informed analysis to each suspect's individual situation.

Eric Whitcher, who runs Pennington County’s Public Defender’s Office, said the current money-bail system has taxpayers forking over an average of $80 per day, per inmate, to house some nonviolent and low-level criminal suspects who wouldn’t be in jail if they had $50.

To him, that makes no sense at all.

“So that’s what this MacArthur grant is designed for,” Whitcher said. “To make sure those kinds of cases don’t happen.”

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Contact Seth Tupper at seth.tupper@rapidcityjournal.com

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Enterprise Reporter

Enterprise reporter for the Rapid City Journal and author of "Calvin Coolidge in the Black Hills."