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The History of Bail by Gerald P. Monks

Bureau of Justice Statistics Special Report, Nov. 2007

Indiana Bail Related Case Summaries

Smith v. Lake County, 2007 WL 968777 (Ind.App. April 3, 2007) is the latest in a series of cases in which a bail agent challenged the constitutionality of Indiana bail statutes and particularly the use of 10% cash bail. The Court held that the adverse decision in Lake County Clerk’s Office v. Smith, 766 N.E.2d 707 (Ind. 2002) barred the plaintiff’s claims because they could have been raised in the earlier case. The Court also noted Mr. Smith’s several other state and federal suits and appeals asserting similar challenges and imposed sanctions for vexatious and frivolous litigation.

Shroyer v. State, 2007 WL 926057 (Ind.App. March 29, 2007) held that the 10% cash bond posted by the defendant could be applied by the state to pay the defendant’s fine and court costs. The court ordered a $1,500 cash only bond. The court interpreted that to be 10% of a $15,000 bond and so subject to application to fines, costs and administrative fees. [Not published.]

State v. Boles, 792 N.E.2d 553 (Ind. App. 2003) involved a consolidated appeal of nine cases in which the trial court clerk imposed "late surrender fees" after the defendant failed to appear. The Court of Appeals affirmed the trial court's order vacating the fees and exonerating the bonds. In each case, the court had failed to give the bail bondsman or surety advance notice of the trial or hearing date at which the defendant did not appear. The Court of Appeals held that such notice was mandatory. The Court also held that only a trial court judge, not the clerk, could assess late surrender fees.

In State v. Boles, 2004 WL 1445441 (Ind. June 29, 2004) the Indiana Supreme Court reversed the trial court and Court of Appeals and held that late surrender fees and bond forfeiture can be imposed even though the court failed to give the bail agent or surety advance notice of the appearance date as required by Ind. Code §27-10-2-8(a). The Supreme Court also held that the clerk, as opposed to the Judge, could assess the late surrender fees. The bail agent and surety would still be entitled to receive notice that the defendant failed to appear pursuant to §27-10-2-12(a), and only the Judge could declare a forfeiture of the bond. The Court remanded the case to the trial court to determine whether the late surrender fees should be waived pursuant to §27-10-2-12(e) because of the surety's or bail agent's diligent efforts to locate the defendants.

In Smith v. City of Hammond, 2004 WL 2453757 (7th Cir. November 3, 2004) a City Court judge refused to permit use of a surety bond for bail and instead ordered that bail be “cash bond” meaning that the defendant had to deposit 10% of the face amount of the bail and would receive that deposit, less certain deductions, back if she appeared. The bondsman sued the judge, the city court, the City, the police chief and the city clerk asserting that he was deprived of a property right in violation of 42 U.S.C. §1983. The alleged property right was his license as a bondsman. The plaintiff sought a preliminary injunction and appealed its denial. The Seventh Circuit affirmed on multiple grounds and remanded the case with the suggestion that it be dismissed “without further ado” since it was plainly without merit.

In Government Payment Service, Inc. v. Ace Bail Bonds, 2006 WL 2873621 (Ind.App. October 11, 2006) a group of bail agents sued Government Payment Service (GPS) for violating the Indiana statute on licensing of bail agents and tortious interference with the bail agents’ contracts. The trail court granted a temporary restraining order, and later a permanent injunction, restraining GPS from facilitating the payment of cash bail in Indiana. GPS counterclaimed for malicious prosecution. GPS had contracts with three courts under which inmates could charge their cash bail. GPS received a fee in connection with each transaction, and the bail agents argued that this violated IC 27-10-3-1 under which only a licensed bail agent may charge a fee to post a bail bond. The Court of Appeals reversed the injunction and held, “Facilitating the access of incarcerated defendants to credit which they in turn post as cash bail is not engaging in the writing of bail bonds, and it is not tortious interference with the business relationships of the Bail Agents.” The Court also held that the lower court case terminated in the bail agents’ favor, therefore GPS could not recover on its counterclaim.