Maryland's top court could make it much more difficult for undocumented immigrants to secure bail bonds, in a case likely to resolve long-standing questions about whether bondsmen are on the hook when clients get deported before trial.
In a case pending at the Court of Appeals, Big Louie Bail Bonds has been ordered to pay more than $100,000 in Baltimore County in bail forfeitures after 10 defendants were deported before their criminal trials. Lower courts ruled that the company knew — or should have known — it was taking on clients with a high risk of deportation.
"We can't afford to be in business like that. It just won't be worth it," said Luis Contreras, one of the owners of Big Louie, a Baltimore-based company that writes more than 800 bonds a year in the Hispanic community.
Unlike most criminal proceedings, cases against immigrants can set off a separate federal process that carries the threat of deportation. Those who are already in the country illegally may have to deal with the state courts and federal immigration authorities at the same time.
At issue is who should bear the financial responsibility when immigration enforcement moves faster than a court case, sending the defendant out of the country before trial.
Maryland has the 10th largest unauthorized immigrant population in the country, an estimated 275,000 people — or close to 5 percent of the state's population, according to the Pew Research Center.
Difficulty in obtaining bond would be "troubling within the community," said Kim Propeack, political action director for Casa de Maryland, the state's largest immigrant advocacy organization.
The state offers immigrants the same opportunity as other defendants to post bail so they can be released while awaiting trial, and bondsmen say it's unfair to penalize them when the federal government deports their clients before their state cases are resolved.
Assistant Attorney General Beatrice Nunez-Bellamy told the Court of Appeals in December that bondsmen should know before they collect fees for posting bond — often from defendants' families — that they are taking a chance on someone who might be deported before trial.
In the case before the court, Big Louie posted then forfeited bail for defendants who were never released from jail. Instead, the alleged criminals were held at the direction of the federal government, picked up by immigration authorities, and after federal proceedings, sent out of the United States.
Defendants in Maryland have also been released, then taken into custody and deported by federal authorities while out on bail.
Bonding companies charge defendants a fee to post the money required for pretrial release, and can require collateral in order to assume the risk that a client won't show up in court. The service is popular because it allows people to get out of jail before trial without putting up a large amount of their own money. Bondsmen charge a small percentage of the bail amount for their services.
Bondsmen are liable to the court for the entire bail amount. They can challenge a court-ordered forfeiture when their clients are deported, but if they lose, bondsmen have the choice of suing whoever has guaranteed the bail for reimbursement. Such situations can prove costly for both bondsmen and their clients, who may not be able to pay.
Lawyers say cases involving deported defendants come up dozens of times a year across Maryland, and outcomes vary. Sometimes bondsmen are ordered to forfeit the bail. More often, lawyers say, they are not.
The outcome in this case could change that, and bondsmen who work largely in the Latino community say a decision that holds them responsible in case of deportation will make them more wary of accepting defendants who are wanted by immigration authorities or are admittedly in the country illegally.
"We can't keep paying out $3,000," said Diego Albornoz, of Diego's Bail Bonds. The Upper Marlboro-based firm does business mostly in the Hispanic community.
Andrew White, an attorney for Big Louie, said many defendants, even those on minor charges, will sit in jails at local or federal expense because they won't be able to get bond.
"If the court rules against us, what they have just done is ensure that thousands of poor of Hispanics are going to be jailed," White said.
Not every illegal immigrant arrested will be deported. U.S. Immigration and Customs Enforcement might not know defendants are in the country illegally unless they are wanted for some reason; perhaps they've overstayed visas or were convicted of other crimes.
But bondsmen say it can be difficult to determine whether their clients are candidates for deportation. Not all past infractions lead to possible deportation, under the latest ICE guidelines.
Privacy restrictions bar ICE from giving out an individual's immigration details, said spokeswoman Nicole Navas. Some basic information, which may include immigration issues or failures to appear for other court proceedings, can often be found in court files or through other means.
Scott D. Shellenberger, the state's attorney in Baltimore County, said the issue is part of the bondsmen's gamble.
"Why should you make money when the person comes to court and not lose money when he doesn't?" he said. Bondsmen "shouldn't be able to win no matter what."
The handling of this issue has varied among states.
In Colorado, bondsmen forfeit only the bond — not the full bail — if a defendant doesn't challenge deportation and is removed from the country before trial, said Jefferson County District Attorney Scott Storey. Bondsmen don't make money on those bonds.
In Tennessee, deportation has not been a reason to excuse companies from paying the full bail amount to the court, said Don White, vice president of ABC Bonding in Chattanooga. That's why he, and many other bondsmen, require the full bail amount up front if they can't verify a Social Security number for the defendant. And if the accused does come to court, they refund the client everything but the 10 percent bond and their fees.
Some Maryland Court of Appeals judges suggested ways of dealing with the issues, such as not writing bonds unless defendants ask immigration courts to delay deportation proceedings until after trial, and allowing bondsmen to ask courts to return forfeited bail if they prove they tried to return the deported defendant to the United States.
Lawyers for Big Louie said bondsmen want a "bright line" decision that clearly sets the rules. And they said enmeshing bondsmen in a client's immigration case is costly and time-consuming.
During arguments at the Court of Appeals, judges acknowledged it's a sticky problem.
"This is nuanced beyond that which we've ever seen before because we have the federal government coming in," said Judge Lynne A. Battaglia.