Jeff Brandes wants second chance at pretrial diversion bill

State Sen. Jeff Brandes still wants to see a court diversion program go statewide. And bail bondsmen still think that’s a bad idea.

The Pinellas  Republican filed a new bill (SB 534) to establish a supervised bond program, letting individuals enter an administrative order for the use of a risk assessment instrument in pretrial release.

“It will be a great tool for everybody,” Brandes said. “It will help sheriffs manage jail populations, and it will help individuals get back to life quicker.”

The legislation allows court diversion only with the concurrence of the chief judge, chief correctional officer, state attorney and public defender in appropriate jurisdictions.

The legislation authorizes the chief judge of each circuit to enter an administrative order for the use of a risk assessment instrument in pretrial release determinations. The court retains sole discretion to determine the appropriateness of pretrial release and any necessary pretrial release conditions.

Brandes modeled the legislation off a successful pretrial diversion program managed by Pinellas County Sheriff Bob Gualtieri.

But bail bondsmen suggest if such a program had guaranteed success, more local jurisdictions would already do it. The prospect of taking this statewide, meanwhile, may prove costly to jurisdictions forced to consider the change.

Shawn Foster, lobbyist for the Florida Bail Agents Association, characterized the proposal as another burden for local governments.

“The real problem then comes to counties to fund these programs,” he said. “Currently there are 32 counties in Florida who operate pretrial programs. And according to an OPPAGA [Office of Program Policy Analysis and Government Accountability] study published in November of 2018, of the 29 program surveyed in Florida, none of them were able to report that they received state general revenue to fund their pretrial release programs. Further, the reported data varied in statistics due to lack of funding and variations between pretrial programs.”

Brandes pushed similar legislation last Session but was unsuccessful. He will likely face similar opposition as he did last year.

A chief concern for bondsmen remains costs once paid for by criminal defendants will disappear.

“The overall problem here is that eliminating or severely limiting cash bail transfers the costs from the offender to the taxpayer,” Foster said.

Brandes, though, pushed back on that characterization. He said bail only gets set by judges to ensure individuals show up for court dates. To suggest individuals arrested should shoulder all costs for the justice system presumes their guilt before a verdict gets rendered.

“The purpose of bail is not to adjudicate,” Brandes said. “It’s so they [defendants] show up for trial.”

Brandes considered the opposition from bail bondsmen to be based on fear of losing their own revenue source. Should judges order pretrial diversion and release individuals from jail without setting bail, that means bondsmen have fewer customers that need someone to float a bond.

Meanwhile, jails absorb costs for keeping individuals imprisoned who cannot cover bail. And the individuals themselves often lose their jobs, sometimes leaving families with no source of household income.

It could save money for the system to provide electronic monitoring rather than housing inmates in a county jail. More importantly, it allows those individuals to continue as contributing members of society while they await court dates.

But it’s a major change to the system, Foster said, being considered with little data proving it will produce positive societal results.

“Why are we moving forward on a massive reform effort with limited or no data?” he said. “Within the past three years, bail reform has been moving toward pretrial release programs in the United States, or eliminating bail altogether… However, what have we seen? Challenges to constitutionality, reversal of pretrial programs and violent offenders slipping through the cracks.”

Fowler remains concerned about whether courts can assess the risks of putting offenders back on the streets while awaiting trial, and about whether those assessments will be made fairly by court officials.

“Of the 28 of the 29 counties in Florida that responded to the OPPAGA study who used a pretrial release program,” he said, “all 28 saw a rise in FTA’s (failure to appears) and re-arrest for ‘any’ offense while participating in the program.”