Bond policy used to collect child support comes under question

July 08--When a friend came to Judd Masterson for help, Masterson didn't see any reason to hesitate.

Masterson's friend told him she needed about $1,500 to bail her boyfriend out of jail, which seemed pretty normal to him.

"A friend asked to borrow some money for a bond, so I lent it to her like I have many times before," Masterson said. "Sometimes people just need help and I've always gotten my money back."

But this time the situation would be much different. Unknown to Masterson and his friend, the man in jail had a stipulation added to his bond conditions that has Masterson's $1,500 potentially headed toward the man's child support debt.

Daviess County is one of a number of Kentucky counties using an interpretation of the state's child support laws to set bond conditions as a tool in collecting child support payments. While the County Attorney's Office and the Daviess County Family Court uses these conditions to recover money for the guardians of minors and the state, public defenders like Saeid Shafizadeh believe it is also robbing people of the right to have bail.

"This discourages people like Mr. Masterson from giving his bond," Shafizadeh said. "They can't legally dictate who puts up the money. The bond money is set to make sure the person shows up for court, not to pay debts."

Under Kentucky law, bail bonds are normally placed in the name of whoever is putting up the bond, but Daviess County Attorney Claud Porter said the county's contract with the state's division of Child Support Enforcement obligates them to try any available method to retrieve back child support. One of those methods is the creation of an agreement that demands bonds be placed into the name of an inmate so it can be forfeited for back child support.

To guarantee at least some money from frequently non-compliant people makes its way back to guardians or the state caring for children in the child support system, the Daviess County Attorney's Office often asks judges hearing a case to set a defendant's bail in the amount owed. If the defendant finds themselves in jail for any reason, their owed child support can be recouped in the form of the forfeited bond.

Shafizadeh said the office asks defendants and public defenders like himself to sign the agreements in order to negotiate child support payments.

"We sign them because we really have no other choice," Shafizadeh said. "I've thought about fighting it before, but I'm contractually obligated to do what is in the best interest of my client. If we don't take it, my client will be incarcerated while we play out a long fight."

Porter said the bond conditions were a tool built into the state's child support laws that allow the state's county attorney's offices to go after much needed support for children.

"The whole reason we are doing it is because the people we picked up for court aren't paying and often they disappear after release," Porter said. "The rest of us are paying support for that person."

Once an agreement is signed, losing a bond doesn't become an automatic conclusion. Porter said his office has to go to the court and request a bond be forfeited for child support if the signee happens to go to jail.

Family Court Judge Julie Gordon said she sometimes set bonds in the amount someone owes in child support if it doesn't seem like an unreasonable amount based on their finances and situation, but has rarely been asked for a hearing to forfeit someone's bond for child support.

She said she believes labeling the bond conditions as a violation of what bail is legally reserved for doesn't account for the consideration that judges and county attorney staff go through when evaluating each case.

"That's a deceptively simple answer to a complex issue," Gordon said. "People can be put into detention for child support on very different issues. If it's failure to appear, some judges don't set a bond at all because there is already a clear pattern of not showing up to court. If it's a failure to comply, the keys to the jail are in their pocket. I can't put someone in jail and put bond amounts in place that someone is simply incapable of paying."

Porter said the county doesn't use the policy in every single child support case. He said the county has more than 6,000 child support cases with about 1,500 people his office is trying to collect from.

"We collect $10 to $12 million a year in payments, or roughly $3,000 a day," Porter said. "That sounds successful, but that's nowhere near all of the support that is owed to guardians or the state."

Gordon said the county was using the policy long before she took the bench and understood that the use of the bond conditions came from an agreement between the County Attorney's Office and the Department of Public Advocacy in Daviess County.

While legal representation on both sides of the court may understand the policy, the people at the heart of child support cases may be another story. Masterson said he had heard of the policy before, as the jail has signs posted, but his friend didn't know there was a difference in the bond. She had posted the bond at the Daviess County Detention Center, which takes bonds after 4 p.m. on behalf of the court.

Sgt. Jim Wyatt, a detention center employee that supervises bonding, said jail staff usually inform people posting bond that there will be a possibility they won't get their bond back, but they have no way giving anyone a definite answer without seeing the court's paperwork.

"All of that is decided long before it gets to us," Wyatt said. "When someone pays a bond, there is usually a form that says they understand they can't get their money back under certain conditions, but I wouldn't be able to definitely tell someone if the inmate had signed a forfeiture agreement."

Several people involved in special bonding agreements in the past were reached for comment, but ultimately declined to be a part of the story. Public defenders from surrounding counties also declined to comment on the record, but two confirmed similar bond conditions were used in almost every county in the region.

In a statement, Child Support Enforcement Commissioner Bryan Hubbard said the division doesn't necessarily keep track of which counties in the state use the condition to recoup child support.

"The judge usually sets the bond in an amount equal to the arrearage or the amount that the noncustodial parent was ordered to pay and did not," Hubbard said in an email. "There are instances when the bond condition is cash only and specifically states that it will be forfeited to apply to the child support arrearage. I am not sure how this information is communicated to the person... ."

Hubbard said 102 counties have signed contracts with CSE in Fiscal Year 2018-19 and 18 are outstanding. The 18 outstanding counties are expected to sign contracts next week.

Shafizadeh said he can understand the responsibility the County Attorney's Office has, but the effects of the policy are creating a cycle of incarceration without bail for low-income people.

"It's unconstitutional because it has a chilling effect on loved ones wanting to get people out of jail," Shafizadeh said. "This is aimed at indigent people. Affluent people don't see this. The majority of the people in this situation don't have an ability to fight."

Shafizadeh said the reality that some people can only get out of jail if their friends and family consent to potentially losing large amounts of money violates Section 18 of the Kentucky Constitution, which prohibits jailing someone for the benefit of their debtors.

Whether constitutional or not, Masterson said he would have to count himself among the people who are wary of the county's bond system.

"People make mistakes and they learn from them, but taking other people's money stops that from happening," Masterson said. "No one would bail anyone out if they weren't going to get their money back. I know I probably won't bail anyone out again."

Jacob Dick, 270-228-2837, jdick@messenger-inquirer.com,Twitter: @jdickjournalism

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