Until I had to bail someone out of jail, my foggy notions of the hows and whys of this system were based on TV cop shows, noir films and Raymond Chandler detective stories. I’d assumed (wrongly, it turns out) that the bail set was an indicator of the seriousness of the crime, and that bailing someone out of jail had always been part of our court system. I had no clue how much this part of the system penalized innocent people, damaging and sometimes destroying families that struggle from paycheck to paycheck. Nor any idea of who really benefits from this whole industry.
In England, Canada, Australia and other countries, charging a fee for paying a defendant’s bond is considered a form of obstructing justice, a crime similar to witness tampering or bribing a juror.
The practice is condemned by the American Bar Association, the National Association of Counties, the International Association of Chiefs of Police and the National District Attorneys Association, because it discriminates against poor and middle-class defendants, does nothing for public safety, and places people’s liberty in the hands of profiteers. Attorney General Eric Holder noted that commercial bail was a major obstacle to reducing the nation’s prison populations. Yet it persists.
Bail is supposed to ensure that defendants show up for trial. Its roots go back to English common law, when promises were sworn and land or property were pledged by the defendants or their relatives to assure that the accused would not flee. If they didn’t show, they lost the family farm.
Back in the Wild West, entrepreneurs and bounty hunters joined forces. By the early 1890s, private businesses were posting bail and promising to hunt down defendants who fled.
What began as a specialty business has morphed into an integral part of the criminal justice system. Judges often fall prey to the notion that setting a high amount for bail directly reflects the seriousness of a crime, not simply assuring that the accused will show up for trial.
Today, only 23 percent of those released before trial are released on recognizance; 49 percent have to purchase commercial bail and average bail amounts have almost tripled for felony cases, according to Shane Baur’s article in the May/June 2014 issue of Mother Jones, “Lobbyists, Guns and Money: Inside the shadowy- and very well-connected – bail bonds industry.”
It turns out that there are big bucks to be made in the bail business. Examining the finances of 32 companies that underwrite bail bonds, Baur found that they underwrote more than $13.5 billion (with a B) in bonds in 2012. With virtually no losses.
By contrast, property and auto insurance companies pay some 40 to 60 percent of their revenue in losses. Bail bond underwriters fork over less than 1 percent for those who jump bail.
People who have not been convicted of any crime and those falsely accused who are eager for their day in court still must pay a nonrefundable fee to a private business to avoid being held in jail. Even though they turn up for one court appearance after another.
Those with ready cash don’t have to worry about losing their jobs, paying their rent, child support or mortgage; handing over a bundle to the court until all proceedings are finished is a minor inconvenience. Otherwise the choice is coming up with the bondsman’s non-refundable charges or sitting in jail awaiting trial. Both doing time in jail and coming up with bail money jeopardize defendants’ families. Jailing breadwinners even for a few weeks can put entire families on welfare or out on the streets. Most people jailed were employed when arrested – 71 percent according to the Bureau of Justice Statistics.
People released before trial are three times less likely to be sentenced to prison than those held in jail, other factors being equal, simply because It’s nearly impossible to mount a good defense from jail. What’s more, those behind bars are more eager to take a plea offer in order to get out.
Good credit is not much help, either. Putting the non-refundable bondsman’s fee on a credit card adds additional “cash equivalent” charges. The issuing bank treats bail bond charges as loans where finance charges accrue at the highest possible daily interest rate. “That’s the way we treat all bail bond charges and charges from casinos,” a credit card company employee explained cheerfully.
The uniquely American bail bond business is the only place in the criminal justice system where a decision about someone’s liberty is in the hands of a profit-making business. Holding someone’s freedom for ransom sets up a situation that’s ripe for all kinds of exploitation.
Seeds for bail reform were planted In 1961 when philanthropist Louis Schweitzer and magazine editor Herbert Sturtz recognized the injustice of a bail system that granted liberty based on income. Working with New York City criminal justice leaders, they developed and tested a solution, the Manhattan Bail Project, demonstrating that New Yorkers too poor to afford bail but with strong ties to their communities could be released and still show up in court.
The Vera Institute of Justice—named for Schweitzer’s mother—was created to make justice systems fairer and more effective through research and innovation.
Pre-trial services, a viable alternative to bail, began changing how judges made release decisions in criminal courts while reducing costs and minimizing disruption in the lives of many defendants. Provided independent evaluations of case-by-case risks, judges had reasons for releasing many more defendants on their own recognizance.
Studies show that the longer people are jailed pre-trial, the more likely they are to re- offend and be returned to jail.
The 1966 Bail Reform Act restricted commercial bail in federal courts and declared that a defendant facing trial for a non-capital offense should be released “on his personal recognizance” while reserving a judge’s ability to choose appropriate conditions or restrictions. The 1984 Bail Reform Act provided judicial guidelines. These reforms don’t apply to local or state courts, where the field is wide open to commercial bail firms.
By 1990, commercial bail accounted for a mere 23 percent of pretrial releases; releases on recognizance accounted for 40 percent. Today, however, these proportions have reversed: Two-thirds of the nearly 750,000 people in jail are awaiting trial. Among those accused of felonies, 89 percent are jailed because they can’t afford bail.
The U.S. leads the world in the number of people in jail. There’s no data on the nation-wide costs of holding people awaiting trial. Costs vary by location. In New York, it’s $460 a day to keep an inmate in jail.
Dozens of prison reform groups across the country face an uphill battle against a well-funded multi-billion dollar business that has recently been embraced by the conservative American Legislative Exchange Council (ALEC) — which is a whole ‘nother story.