4 ARIZONA AT TORNE YMARCH2017
FROM THE EDI TOR
A Publication of the State Bar of Arizona
LISA BORMASTER FONTES
DAVID H. BENTON, CHAIR
www.azbar.org /A ZAt torney
YUSRA B. BOKHARI
HON. THEODORE CAMPAGNOLO
PAUL F. DOWDELL
HON. RANDALL M. HOWE
COLLEEN M. JOHNSON
AMANDA C. JONES
MELISSA IYER JULIAN
ASHLEY T. KASARJIAN
KARA L. KLIMA
JOSE V. LUJAN
TERRIE S. RENDLER
MARK D. SAMSON
AMY D. SELLS
MICHAEL F. VALENZUELA
ATTORNEY ATT R EY
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VOLUME 53, NO. 7
If you’re like most people, you think of bail—
when you think of it at all—as an accepted fact of
legal existence, one that’s probably been around
since time immemorial.
Cash-bail strikes most of us as an old-timey
thing, quaint in a way, and entirely necessary to
ensure the appearance of defendants at their
scheduled trials. Most believe that it’s administered
in an even-handed way, and therefore it remains
one of those rare corners of the criminal justice
system that is without controversy.
Now, what if it turns out none of that is true?
What if that under-the-radar administrative tool has a relatively recent
history? What if it leads to inequitable results? And what if bail—and
other court-imposed fines, fees, and penalties—helps simply to jail the
poor and release the rich, all without making the public safer?
These are all questions our own Arizona Supreme Court is willing
to ask, and the resulting answers could cause deep changes to our justice
A January summit held at the Court communicated the problems and
possible solutions to state legislators and members of supervisory boards.
A packed room listened to experts describe the recommendations of a
task force created at the direction of Chief Justice Scott Bales.
The Task Force on Fair Justice for All turned a hard light on all
judicial operations, and on how they affect those who interact with the
judicial branch. National news stories have revealed how some commu-
nities have been
decimated by an
court fees as a
gets. For example,
the flashpoint of
Ferguson, Missouri, may have been a police shooting, but the events
laid bare an economic war waged on the poorest residents. There, the
courts were complicit in a revenue-generation strategy—which led to
decreased trust in those same courts and the broader justice system.
Chief Justice Bales awaited no violent flashpoint to look at our own
You can read the complete Task Force report here: www.azcourts.
What you’ll see is an impressive document that marches
readers, step by step, through a logical series of assumptions.
The sturdiest opponent of change may find himself agreeing,
item by item, with the Task Force’s 11 broad principles. It is a
persuasive document, ever mindful of its audience of experienced court personnel, lawyers, and elected officials. Whether
its 65 recommendations eventually get across the finish line is
another matter, but congratulations to Task Force Chair Dave
Byers for a remarkable document. A package of resultant bills
is wending its way through the current legislative session.
And thank you to Chief Justice Bales and our Court for
seeking a proactive outcome. As visiting speakers at the Summit pointed out, other states now view Arizona as a leader
on these important topics. They—and we—look forward to
what just results emerge from the Court’s deep commitment to
Bailing out justice
Scott Bales, Justice
for All Summit,
Jan. 10, 2017.
would break your heart. What these arguments have told me is that the people who
have gone out on a limb for the friend or
loved one they bailed out are far from rich.
Like the majority of Americans they are
simply hard-working folk trying to do the
right thing by such friend or loved one.
Indigent, no. But not rich, either.
No, the real reason for “bail reform” can
be found in State v. International Fidelity
Insurance Company, 355 P.3d 624 (Ariz.
Ct. App. 2015). In that case the State (Pima
County) was able to enter into evidence (in
violation of the disclosure rules, incidentally) its request that it be reimbursed for
a post-surrender incarceration of a bailed
defendant who had absconded, and was
later caught and returned. The amount requested for that defendant was calculated
by Pima County at $7,039.12 for 84 days—
approximately $84 a day in 2013 dollars (cf.
State v. Int’l Fidelity Ins. Co.). I understand
that other counties which have done similar
studies have determined a “per diem cost”
in the same neighborhood as Pima County.
N.B.: This “aggravating factor” ploy was
too much even for Division II, as it reversed
the trial court’s determination for taking the
per diem cost into account when it forfeited
a giant portion of the bond.
Nevertheless, one can see how much a
“tab” an alleged felonious indigent can run
up on an Arizona county’s nickel during a
pre-trial detention, or that of a political
subdivision of this State which seeks to
house its defendants in a county jail and
reimburses the county for such per diem
At this point it should be noted that the
Task Force which was set up to come up
with the “
let-the-indigent-be-released-from-jail-before-trial-for-little-or-nothing-and-with-no-monitoring” was made up completely of persons in the public sector; some
with advanced degrees to be sure, but all
government employees nonetheless. No one
in the private sector, be it someone like me
or anyone who has ever written even one bail
bond, was invited to be on the Task Force.
Admittedly, I did
have the opportunity
to present to a small
subcommittee of the
Task Force my revenue-
neutral solution to re-
lease indigents and still
have them monitored
by a bondsman. How-
ever, I was figuratively
“patted on the head”
by Mr. Byers, the Task
Force Chair, and told,
essentially, “Oh, the in-
digent defendants will
show up to court even
if a very small or no
bond is required.”
Maybe, but probably
not. Maricopa County
is different than most
all of the other coun-
ties in this State in that
if the bond is put in
jeopardy of forfeiture
(by the defendant fail-
ing to appear) the trial
judge in the underlying
criminal cause does not handle the matter. Rather, all bond mat-
ters are directed to one “Bond Division,” which has its hearings
every Tuesday afternoon.
The Bond Division notifies everyone in the local bonding
community with an email blast of its calendar every Monday.
What I have noticed in the calendars which I have been recently
receiving are trending with more and more of these “low cost
bonds” on the calendar. I do not know whether or not the bonds
on the Bond Division calendar represent just an unfortunate few
of the many responsible indigents, but I believe this trend is like
the canary in the coal mine.
Oh well, it’s all sunshine and lollipops, until it’s not; when
Arizona is overrun by indigents with bench warrants who had no
financial incentive to appear in court, nor anyone, like a professional bondsman, contractually obligated to search for them. This
could be what happens when a group of Arizona bureaucrats
decide, in their collective wisdom, that they can improve upon a
bail system which worked without their help for the past 750
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