It would clearly be unfair not to refund $6 million in fees unlawfully extracted from the people of Orleans Parish.
It would just as clearly be unfair to retrieve those fees from the bail bondsmen who collected, but did not retain, them. They were led to believe they could pass them on to their customers.
The money was forwarded to Criminal District Court in New Orleans, which was not responsible for dreaming up what turned out to be an illegal funding scheme. The blame for that rests squarely with legislators, who in 2005 added one percentage point to the “licensing fee” paid by New Orleans bail bondsmen.
But in ordering New Orleans bondsmen to impose the extra charge for the benefit of the court, legislators did not amend a law that sets the statewide rate at 12% of a bond's face value. It would have been easy enough to add an exemption to the earlier statute and raise the New Orleans rate to 13%; eight years earlier legislators had added on half a percentage point in Jefferson Parish to pay for court commissioners.
But nobody made such an adjustment this time. Thus, although legislators evidently intended for the fees to be merely a “pass-through,” the law isn't written that way. It can only be read to require that the bondsmen eat the extra point.
Maybe the state Insurance Department, which regulates bail bondsmen, can be blamed for failing to pick up on that, but the illicit surcharges went unnoticed until the Southern Poverty Law Center raised the alarm in 2017. There is no chance that sleepy officials will be held responsible for their mistakes. Either the fees will not be repaid, or the bail bondsmen will repay them. Only the innocent can suffer in the end.
Three years after Bobby Jindal left the governor's mansion, his legacy is coming into clearer focus, and he sure was no one-trick pony.
As to which unjust option is preferable, it will not be the bail bondsmen tugging at the heartstrings of most people. According to the SPLC, the $6 million came from 50,000 bail bonds written in Orleans Parish.
People who must borrow money to get loved ones out of Orleans Parish prison are overwhelmingly poor and black, but the bondsmen's legislative friends have managed to misconstrue any mention of this salient and indisputable fact as “playing the race card.”
Sympathies in the Legislature seem to be largely with the bondsmen. A bill blocking Insurance Commissioner Jim Donelon's order that the bondsmen repay the fees has sailed through the Senate and a House committee. Bail bondsmen make campaign contributions and their customers generally don't, a consideration that could weigh heavily.
When Donelon ordered the bondsmen to repay the fees, he was saddling them with a most time-consuming and therefore expensive chore, given the difficulty of tracing such a large number of people each owed a relatively modest sum. But if bondsmen did not make the necessary effort, they would be held liable under a law that defines failure to refund bond overcharges as “theft,” Donelon explained. That meant heavy fines or the revocation or suspension of licenses. The bondsmen claimed lots of them would be driven into bankruptcy, which could cause major social disruption. Mass bankruptcies, if they did materialize, might also be a blow for those who need their services.
In any case, that prospect so distressed legislators that they filed a bill that would not only nullify Donelon's order but make a 13% surcharge permanent in Orleans Parish. This was such a gratuitous scheme to soak the poor — Criminal Court has alternative funding sources these days — that legislators were shamed into eliminating the prospective fee increase. They had to be content with letting bail bondsmen off the hook for the $6 million already collected.
Several members of the 2005 legislature averred that they intended for the fee increase to be passed through to the bond companies' customers. Among them was Cedric Richmond, who now represents New Orleans in Congress.
But in the end, it may not matter which side the current Legislature takes, for this is a dispute that seems bound to end up in court, where it should be swiftly settled. Legislative intent is a consideration only when a statute is ambiguous. The one at issue here is crystal clear and does not permit the bondsmen to charge their customers more than 12%.
Email James Gill at Gill1407@bellsouth.net.