How Commercial Bail Bonds Fuel Mass Incarceration

How Commercial Bail Bonds Fuel Mass Incarceration

What are Bail Bonds?

After an arrest, defendants can pay the full bail amount set by the court to the county in order to be released until their trial date. However, most defendants don’t have thousands of dollars in cash readily available, so they turn to a commercial bail bonds agent. The agent posts a bond with the court worth the full bail amount in exchange for a nonrefundable 10% fee from the defendant. This predatory industry profits off desperate people trying to avoid jail time before being convicted of any crime.

For example, if a judge sets bail at $20,000, the defendant would need to pay the bonds agent $2,000 plus additional fees around $200-$300. The agent posts the full $20,000 with the court as collateral, and the defendant is released until their court date. The $2,000 is nonrefundable even if charges are dismissed. Commercial bail bonding is currently legal in all but four states.

Wealth-Based Detention

Since money bail systems require cash up front for release, they inherently discriminate against poor defendants. Even with just a $200 bond, many low-income people don’t have that much cash available. About 70% of jail inmates remain detained pretrial because they can’t afford bail, not because they are a safety risk or flight risk.

This contradicts the legal standard of innocent until proven guilty – many poor defendants are unjustly jailed for weeks or months before their trial just because they are poor. Wealthy defendants easily pay their bail and go home. One study found that people with under $7,000 in assets had a 50% chance of pretrial detention because they couldn’t post bond. This wealth-based detention disrupts lives, jobs, and families without being convicted of any crime.

For-Profit Motives

The commercial bail industry only profits when more people are arrested and have bail set. This perverse incentive drives the overuse of monetary bail nationwide. The American Bail Coalition lobbying group pushes for state laws that protect and expand their profits. For example, after Oregon prohibited commercial bail bonding, the industry spent over $150,000 successfully lobbying for a law in 2018 to reinstate it as legal.

Bail bond agents also lobby judges and politicians for higher bail amounts on more defendants to increase their 10% nonrefundable fees. The potential for abuse and bribery in this system is alarming. The bail industry’s primary motive is maximizing profits, not public safety or justice.

Risk Assessment Tools

Many jurisdictions use computerized “risk assessment” tools to recommend bail amounts to judges. These algorithms claim to calculate a defendant’s risk of committing another crime or failing to appear in court if released pretrial. However, the proprietary algorithms used are racially biased and lack transparency about how they make decisions. They unjustly label poor people and minorities as higher risk.

For example, a ProPublica investigation found that the COMPAS algorithm scored black defendants as higher risk at twice the rate of white defendants. However, the algorithms are protected corporate secrets, so defendants have no way to examine potential bias. Risk assessment tools reinforce racial bias and widen inequality in bail and sentencing outcomes when used improperly.

The Bail Industry Lobbies Against Reform

Progressive criminal justice reforms threaten the bail industry’s profits. So the American Bail Coalition aggressively lobbies against reforms like ending cash bail, limiting pretrial detention, or improving pretrial services. For example, bail agents helped draft and pass an anti-reform bill in Georgia in 2018 requiring cash bail for more offenses and blocking bail reform efforts.

The industry also helped defeat a California bill in 2019 that would have mostly replaced cash bail with risk assessments. However, risk assessment algorithms also have racial bias problems as mentioned above. The bail industry’s political influence impedes progress on evidence-based pretrial reforms.

Alternatives to Cash Bail

What are some alternatives to our current money bail system that creates so much harm? Many criminal justice experts argue we should greatly limit or end cash bail and pretrial detention overall. Most people arrested for non-violent misdemeanors and felonies can be safely released with proper pretrial services.

For example, Washington D.C. largely bans money bail, detaining only those defendants who are an immediate safety risk. From 2007 to 2014, over 90% of defendants were released without cash bail, and nearly 90% made all court appearances. Only 1% were arrested for a violent crime pretrial. This shows that alternatives like supervised release or reminders about court dates could safely replace cash bail for most.

Preventative Detention Hearings

Those defendants who do pose a high safety risk could be detained pretrial after an open court hearing. The prosecution would have to prove clear evidence that the defendant poses an immediate physical danger to the community or is a high flight risk. This focused detention preserves the presumption of innocence much better than detaining all poor defendants who can’t pay arbitrary bail amounts.

Court Date Reminders

Many people miss court dates unintentionally, which leads to an arrest warrant. Simple text and phone call reminders of upcoming court dates drastically reduce failures to appear, avoiding thousands of unnecessary warrants each year. For example, one study found text reminders reduced failure to appear rates by 26%. Basic court date notifications also free up law enforcement resources to focus on violent crime instead of executing warrants for minor failures to appear.

Supervised Release

Releasing more defendants with proper support services and supervision could reduce pretrial crime and failure to appear rates without needing money bail. Supervision ranges from weekly check-ins to electronic monitoring. For example, an evaluation of a pretrial supervision program in Colorado found that released defendants were 22% less likely to commit new crimes and 15% less likely to fail to appear in court.

Although effective, electronic monitoring raises civil liberties concerns and should be limited. Proper funding for pretrial services like this in every jurisdiction could lead to large reductions in pretrial detention and forced bail bonding.