Bail and illegal immigrants

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With all due respect to bail bondsmen who play a necessary role in the criminal justice system, the case pending before the Maryland Court of Appeals involving illegal immigrants and whether bondsmen should be liable for illegal immigrant defendants who have been deported raises some troubling questions about the profession.

As reported last week by The Sun's Andrea Siegel, the facts in the case of Big Louie Bail Bonds v. State of Maryland are fairly clear cut. Ten individuals, all found to be without proof of legal presence in this country, were arrested on a variety of minor charges in Baltimore County. All were released on bail provided by Big Louie Bail Bonds, and all were immediately picked up by federal immigration authorities and eventually deported.

But here's where things get interesting. Representatives of Big Louie then asked the District Court to release them from their obligation for those bonds. After all, it was an act of law — in this case, the federal government's enforcement of immigration law — that caused their clients to miss their day in the courthouse in Towson.

Two Baltimore County judges said no. The bondsmen had promised to deliver these defendants and failed to do so. Big Louie would therefore have to pay up — a sum totaling more than $100,000 to cover all the offenders.

That doesn't seem quite fair. Indeed, the state's highest court may yet rule that it wasn't and order the bondsmen to be made whole, on the theory that the failure of the defendants to show up in court had nothing to do with the behavior of the defendants or the bail bondsmen.

But wait, it gets a bit more complicated than that. The company should have known (if, indeed, it didn't actually know) that the defendants in these cases would be receiving what is known as an ICE detainer — a notice that U.S. Immigration and Customs Enforcement plans to hold a suspect on grounds he or she may be in the country illegally.

In Baltimore County, ICE is contacted whenever some who is arrested even for a minor offense is suspected of being in the country illegally.

Thus, if the bondsmen are not held accountable and get to keep the fee paid by the defendant and his relatives or friends (usually about 10 percent of a bond) as well as owe nothing to the court, then they have taken no risk whatsoever. Under such a scenario, might it be possible that an unscrupulous bail bondsman would mislead a client into believing that they ought to post bail when all it gets them is quicker deportation?

That's not to suggest that's what Big Louie Bail Bonds did in Baltimore County — in court filings, the company claims its employees did not know that the defendants would be deported, as ICE detainers don't always result in deportation. But it certainly would give a bail bondsman plenty of financial motivation to do so.

So no matter how the appeals court rules, chances are this is an issue that is going to require action by the Maryland General Assembly to bring a measure of fairness to the law. If the bail bondsmen lose, illegal immigrants (and perhaps a lot of other minorities who lack proof of legal presence) may have trouble securing bail in the future. That's not really in anybody's interest for minor crimes — not the defendants or their families, not the prosecutors, and not the county detention center or the taxpayers who will have to pay for their room and board.

If the bail bondsmen win, then there's a financial incentive built into the system to encourage them to potentially rip off illegal immigrants who get stopped for speeding, failure to have a driver's license or the other charges typical to such proceedings. That's not satisfactory either.

Perhaps the best solution might be for bail bondsmen to return their fees to those who have paid them in such cases but not be held liable for the full bond by the courts. They would then have no reason to take advantage of a client, nor would they be unfairly penalized for the actions of federal authorities. In either case, Big Louie v. Maryland provides further evidence that the business of providing bail to those who can't afford it ought to be kept as transparent as possible.

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