Bail: High-stakes Business of Risk and Reward

(Published in The Providence Journal on Nov. 13, 2012)

PROVIDENCE, R.I. - At first, Israel Vasquez only made cocaine disappear, the police allege. He was the delivery man. Sent out to meet Providence customers, Vasquez allegedly stashed their drugs in a hidden compartment behind a seat in his silver Mitsubishi. He worked for "Tony," aka Jose Hance, who took customer calls from 9 a.m. to 11 p.m. every day, court documents assert. In March 2010, Providence detectives arrested Vasquez and Hance on drug charges. A judge set bail at $30,000 for Vasquez, who had to either pay 10 percent or post the full amount using property in order to get out of prison while awaiting trial. The alternative: A bail bondsman. The incentive: Freedom at a lower cost. Enter Rudy Procaccianti, who dwells most mornings between the floor-to-ceiling windows that cordon the daily drove of defendants at the Garrahy Judicial Complex, Rhode Island's busiest courthouse. He often paces, pauses, presses a handshake with a familiar air that comes with 28 years in the bail-bonds business. He takes calls on his smartphone from people with one foot in prison's door - unless they can get bail, fast. He probes with questions to decide whether to wager properties worth hundreds of thousands of dollars as collateral to grant someone temporary freedom. He wagered on Vasquez. But while out on bail, Vasquez was arrested in January 2011 for allegedly having seven bags of cocaine on him in a Wendy's parking lot in Providence. The police said he told them he was just a runner for someone else. Bail rose to $50,000. Another associate of Procaccianti's bail-bonding business posted it. Court hearings and motions by Vasquez's lawyer followed. A trial or plea agreement lay down the road. Then, in January 2012, the man said to have the novel hiding place for cocaine, the man who was just a runner, went on the run. Vasquez disappeared. And now the bail bondsman had to deliver the delivery man back to Rhode Island -- or face a big expense. Most mornings, on the long fourth floor of Garrahy on Dorrance Street, lined with district courtrooms, several bail bondsmen duck past pay phones, relics they once used in every courthouse. Their smartphones are tools of the trade now. But crime stands the test of time and so have bondsmen, a uniquely American subset not without controversy in which court-registered civilians make a business out of getting people out of jail - for a fraction of what it would cost a defendant to do it himself. Once out, a defendant must meet court obligations or face consequences, including - if they flee - becoming a focus of bondsman-hired private investigators or bounty hunters. Though out of prison, a defendant is essentially under a bondsman's control, by law. And one incentive for bondsmen is to avoid Attorney General Peter F. Kilmartin's office seeking forfeiture, which can lead to a bondsman having to pay the state up to the amount of the full bail for a defendant who cannot be found. A client may owe freedom to a motley mix of a bondsman's properties pledged as bail collateral. Bondsman Joe Wold of Scituate, a family member and two other Wold associates used two Scituate properties as collateral last year. A lot on Water Valley Road covered $2.17 million worth of bail while a property at 121 Betty Pond Rd. tallied $1.69 million in bails. A "sea wall" in Warwick, residential properties and vacant lots are among bail collateral for some bondsmen. Rhode Island's Colosseum, a downtown Providence nightclub at 180 Pine St., is quietly a monument to freedom for the modern-day accused. Procaccianti used it as collateral for $3,890,500 in bail for 212 people, the highest dollar figure of any property used by state bondsmen, according to records filed with the state Judiciary. Procaccianti also uses other properties he owns with associates in his family bail bond firm. Under state law, Rhode Island's 16 licensed bond agents - several are women - are permitted to post bail that is as much as five times the appraised value of real estate he or she is using as collateral. Bondsmen do not need to take any classes or pass tests to work in the profession. But property is a must. The economic downturn, according to some bondsmen, means they are taking more clients for fees below - even well below - the typically advertised Rhode Island maximum of 5 percent of a bail amount. Procaccianti testified at a recent court hearing that it is usually 2.5 percent to 3 percent for him. "With the economy, a lot of these people don't work," Procaccianti says of his clients. "You're charging a little bit less now." And the market drives fees, case by case. "It's very competitive," he says. "And [people in search of a bondsman] will play us off each other." Compared with the 1980s, when he started in the business, Procaccianti says the number of defendants rooted in Rhode Island seems to have declined. "You have a lot of transient people," people without family ties in the state. Procaccianti, as a rule, said he does not post bail for people without local ties, because it is too risky. "A lot of it is defendants through the years - people recognize me," says Procaccianti, who wears suits and drives a fine car. His uncle, the late Armand Procaccianti, was a bondsman, too. A sort of sixth sense - helped by pressing lots of questions - is needed to divine someone's bail potential, meaning whether the client will show up in court as promised, bondsmen said. "You have to know who you are dealing with," says bondsman Wold. "On a lot of the things that I deal with, sometimes you have a gut feeling." These days, Procaccianti says, bail jumping does not happen that often, but "we do have an obligation to bring them in." Bondsmen say their work provides cost savings for taxpayers by reducing the number of people being held at the Adult Corrections Institutions awaiting trial. "A spoke in the wheel" of the justice system, Procaccianti calls bail bondsmen. But as a profession that morphed around the bond system, the commercial bail-bondsman business has had critics. The National District Attorneys Association and the American Bar Association say the system should end. Opponents argue it can discriminate against defendants based on income and other factors, has little oversight and operates in a murky middle-ground in a system otherwise occupied by judges and lawyers. Illinois, Wisconsin, Kentucky and Oregon do not allow bail bondsmen. They seldom operate in Maine, Nebraska and the District of Columbia. But some say bondsmen provide the best incentive for a defendant to meet court obligations. Alex Tabarrok, an economics professor and researcher at George Mason University, wrote in The Wilson Quarterly that "a bond is a promise backed by incentive" and that "bail might be a rich man's privilege were it not for the bail bondsman." The for-profit bail bondsman is "a profession unique to the field of American criminal justice," according to the Pretrial Justice Institute, which advocates changes to the current bail bond system, including revamping or ending the bondsmen business. An 1872 U.S. Supreme Court decision, Taylor vs. Taintor, is sometimes cited as giving bail bondsmen authority to take various steps, such as using bounty hunters, to get a defendant who flees, according to the Pretrial Justice Institute. Bondsman Joe Wold does what he calls a specialized practice, usually 10 a.m. to 11:15 a.m. in District Court. Most people he bails out are referrals through family members or others he's known around the courts for years, he says. Whatever crime statistics show, Wold says anecdotally that more cases involve violence than when he started bail-bonding in the '80s. And with difficult economic times, he says, there are good people who do things that "ordinarily they wouldn't be doing." Frank Castelli, a bondsman for about 10 years, has a large inventory of properties in Providence, Coventry, Glocester, Charlestown, and Cranston for bail collateral. He does not say much about what he does and exudes an air of mystery, saying "every day is different; some days I don't come to court." But he underlines one point. "It's just a risky business," Castelli says, without elaborating. "It's a risky business." And so, in October, Procaccianti took the witness stand at a hearing concerning a court decision in June that he must pay the state the $50,000 he pledged to gain release of his now missing client, Vasquez. Called a set-aside hearing, the session is where a bondsman can make a case for paying the state less than the full amount of the bail It is a judge's discretion whether a bondsman pays and how much. If a bondsman gets a defendant back while the hearing is ongoing, it does not necessarily mean a judge will reduce or waive money owed. But getting to a final decision on whether a bondsman has to pay can often take a long time, said Amy Kempe, spokeswoman for the attorney general's office, with court hearings repeatedly continued. The set-aside hearing on the Vasquez bail has been continued several times. The attorney general's office "always, and let me stress that, always prefers to have the defendant over going after the bail bondsman for forfeiture," Kempe said by e-mail. "The attorney general wants the defendant in court." The total amount of bail forfeited annually by bondsmen is not readily available because the state's electronic case-information system has limited capability and does not separate out such figures, said Craig N. Berke, the state Judiciary spokesman. He said there are plans to upgrade the system. Of the more than 5,000 cases the attorney general's office prosecutes a year, the number that involved bail forfeitures is quite low, Kempe said. She said about 20 forfeitures in total from various years are pending, spread among four bondsmen. "The majority of defendants do appear" for court hearings, Kempe said. Procaccianti testified at the October hearing that he spent several months trying to locate Vasquez, including hiring a private investigations company to find his client and offering a reward. He believes Vasquez is in New York City. Procaccianti said he has hired an investigator "around 20" times during his career to track someone down. He's been unable to find 12 to 15 of those clients, he said at the hearing, which was continued. "The biggest thing I stressed," for all defendants he takes as clients, "is make your court dates," Procaccianti told the judge. That, Procaccianti said, is the "biggest thing they owe me."

SIDEBAR: HOW BAIL WORKS Rhode Island law permits bail for nearly all defendants. The exceptions are those charged with crimes that carry life sentences, or for probation violators. Those charged with low-level crimes may be released on personal recognizance in which the defendant's promise to show-up for court dates is sufficient. No cash or property is pledged. Defendants with serious charges, or a criminal record, may be subject to surety bail, which requires the defendant to either pay 10 percent of the bail amount or pledge property that covers the full bail amount. If the defendant makes court dates, the bail down payment is returned. A bail bondsman comes in for defendants without the resources to go it on their own. For a non-refundable fee of 5 percent of the bail, or less, the bondsman will pledge property to cover the full amount of the bail.