The practice of requiring someone to pay money to a court in order to remain free while awaiting trial is known as “money bail.” While considerable attention has been focused on other aspects of our criminal justice system, money bail is a component that has been under-examined but has huge impacts on costs, communities, and those who are arrested and required to make bail. This article will examine the practice of money bail as well as the for-profit bail bonding industry, and explain why neither should be part of a fair and effective justice system.
Money Bail Increases Pretrial Incarceration
Money bail is one of the primary drivers of growth in our jail populations. About 11.8 million people are processed through jails across the United States each year, with over 725,000 people held in jail at any given time.1 U.S. jails have operated at an average 91 percent capacity since 2000, resulting in a huge financial burden to states, cities and counties, and frequently inhumane conditions for people who are jailed.
What many don’t know is that a majority of those held in jail are presumed innocent: approximately three in five people in jail are awaiting trial or pending charges.2 In 2011, detaining people in jail before their day in court was costing counties around $9 billion a year alone.3
Many people remain in jail pretrial because they don’t have the cash to “buy their freedom” by paying required money bail. However, the ability to pay money bail is an indicator neither of a person’s guilt nor of their risk to public safety. Meanwhile, those too poor to pay money bail remain incarcerated regardless of their risk level or presumed innocence. There is no national data regarding how long people stay in jail until their case is resolved; however, in the 75 most populous counties, people accused of felonies who did not post bail in 2002 stayed in jail a median of 51 days until trial (that is, more than half waited 51 days or more).4
A recent study concluded that 25% more people being held in jail pretrial could be safely released than are currently being released. 5 Keeping those persons incarcerated hinders their ability to take care of their families, jobs and communities while overcrowding jails and increasing costs to taxpayers.
Money Bail is One of a Number of Pretrial Release Options
There are several ways that someone may be released from jail after their arrest as they await their court date. Sometimes, judges or court representatives will combine release options. Release options that do not involve the upfront payment of money bail include:
• Release on recognizance – The person signs a contract agreeing to appear in court for their hearings as required.
• Unsecured bond – The person signs a contract agreeing to appear in court for their hearings and accepting liability for a set amount of money should they not appear as required.
• Conditional release – The person is given a list of stipulations that must be honored in order to stay out of jail while awaiting trial. These often include drug and alcohol testing, orders to attend mental health or substance abuse treatment, and/or monitoring by a third party such as a family member or pretrial service agency.
• Release to pretrial services – Where available, people released from jail may be required to be supervised by a pre-trial service agency. These organizations typically conduct risk assessments and provide appropriate supervision as indicated by the risk assessment findings.
Other release options that require money in order to get out of jail pretrial include:
• Money bond – Also known as cash bond, a person (or their friends or family) pays the bail amount in full in order to be released from jail. Upon the resolution of their case, they are reimbursed for the full amount less administrative or other court fees. Some jurisdictions allow cash bail to be paid with a credit card; others don’t.
• Deposit bond – The person pays a percentage of the bail amount (usually 10 percent) to the court, with the understanding that failure to appear at court hearings will make them liable for the full bail amount.
• Property bond – In lieu of cash, someone may provide a deed and other paperwork to allow the court to put a lien on property for the value of the bond amount; until they appear in court, the court holds the deed on a house or title to other property like a boat or car.
• Surety or commercial bond through a for-profit bail bond company – This is the most common release mechanism for people required to post money bail. A person or their friends or family pays a non-refundable premium – often ten percent of the full money bail amount – to a bail bondsmen, who then guarantees that the bonded person will appear at their court hearings.
What is For-profit Bail Bonding?
For-profit bail bonding – the practice of hiring a third party to pay or provide a surety guarantee for one’s bail – is commonly believed to have begun in the U.S. around 1898 in San Francisco. Over a hundred years later, the bail bonding industry is now a billion-dollar business with considerable political influence. Campaign donations and lobbyists promote the industry’s right to exist, reduce competition from alternatives to commercial bail like pretrial supervision and ensure that profit margins remain high through reduction of risk in the form of forfeitures (payment of the full bail amount when someone does not return to court).
As early as the 1920s, critics raised worrying issues about the bail bonding industry that continue today. Arthur L. Beeley, in his 1927 study The Bail System in Chicago, noted that poor people remained in pretrial detention solely due to their inability to pay even small bail amounts. He believed the role of bail bondsmen had become too prominent in the administration of justice, and corruption and a failure to pay bond forfeitures plagued the industry. Amazingly, those issues are still at the heart of what is wrong with the for-profit bail bonding system in America today.6 The United States is the only country besides the Philippines that allows commercial, for-profit bail bonding.
How do Bail Bonds Work?
No one who is offered release on money bail has to use a bail bondsman. After being arrested, a person may be given the option of posting bail (by paying a set amount of money to the court) in order to be released prior to their trial. He or she – or, more typically, their friends or family members – may pay the full bail amount directly to the court. When they appear for their trial date, the amount paid in bail is refunded less court fees. If they do not show up for court – they “fail to appear” (FTA) – their bond may be forfeited and a warrant issued for their arrest.
Barring extenuating circumstances that prevented their appearance in court, such as being hospitalized, someone who fails to appear and is apprehended by the police may be required to stay in jail until the final disposition of their case. Sometimes the court will set a new, higher bail amount following an FTA, and the bonding process begins again.
Many people, though, do not have and cannot raise the full bail amount. They may then turn to a commercial bail bondsman. For a fee – most often ten percent of the total bail amount – a bondsman will secure someone’s pretrial release. The person (or their friends or family) who pays for the bond also signs an agreement to pay the full amount if they fail to appear in court. They may have to prove to the bondsman that they have adequate resources available to cover the full amount. While the bondsman does not have to pay the full bail amount to the court at the time of the person’s release from jail, they must provide evidence that they have available assets to pay the full bail; for example, deeds for property, bank statements or, most commonly, insurance coverage underwritten by a large national company that supplies “surety” insurance to underwrite bail bonds.
If the person who has been bonded appears at trial as required, the bail bond is terminated and the agreement ended, although those who paid the bond fee to a bondsman do not get it back. If the person does not appear at trial, the bondsman is responsible for finding them – at this stage, they are colloquially called a “skip” – and returning them to custody.
If the bail bonding agency is unable to do this, they are liable for paying the entire bail amount to the court (forfeiture). Bondsmen will then turn to the people who signed the bond agreement and take whatever actions are necessary to recover their costs.
For-profit bail bonding is a system that exploits low-income communities; it is ineffective at safely managing pretrial populations, distorts judicial decision-making and gives private insurance agents almost unlimited control over the lives of people they bond out.
In some cases, the power the system inherently cedes to bail bondsmen leads to corruption, coercion and criminal collusion.
As Bail Bonding Industry Grew, So Did Bail Amounts
The average bail amount nearly doubled between 1992 and 2006, from $25,400 to $55,500. Among people released on bond, the average bail amount increased from $7,800 in 1992 to $17,100 in 2006. Overall, whereas 25 percent of people released on bond had a bail amount set at $25,000 or more in 1998, that number increased to 37 percent by 2004. Not only do high bail amounts pose a threat to the right of people not to be subjected to “excessive bail” under the Eighth Amendment, they also are believed to put persons with low incomes at a disadvantage when facing plea bargains.7 People may feel pressured to plead guilty – or plead guilty to more serious charges – because remaining in jail has such significant negative consequences, such as losing their job or housing, or not being able to care for their children.
Many studies over the years have shown that people held in jail pretrial have worse outcomes than those who are released. Those who stay in jail are more likely to be convicted of a felony,8 receive a sentence of incarceration and receive longer sentences than those who are free while pending trial.9
Money Bail and Bail Bonding have Serious Negative Consequences
People who post bail or pay a bondman’s fee to get out of jail may deplete their funds and the funds of family members and friends that are needed to pay rent, buy groceries and cover medical expenses or other bills.10 Those who are unable to pay their money bail or a percentage to a bondsman, and remain in jail, may lose their jobs, default on vehicles, lose their homes, get behind on child support payments, lose custody of dependent children and more. The implications of the bail system can make or break a person’s ability to successfully return to the community after their charges have been resolved.
There are also racial disparities in the existing bail bond system. Annual jail population data indicate that while African Americans comprise only 12 percent of the total U.S. population, they made up 38 percent of the U.S. jail population in 2011.11 Estimates show that the rate of black/African American people being detained in jail was nearly five times higher than white people and three times higher than Hispanic people.12
A recent study revealed correlations between race and all pretrial outcomes analyzed, concluding that “each correlation indicated harsher treatment for African Americans.”13 The study results indicated that African Americans were less likely to be released on their own recognizance than white defendants,14 and African Americans ages 18 through 29 received significantly higher bail amounts than all others facing charges.15
Although the study did not indicate that race directly predicted pretrial decision-making, the relationship or “interaction” between race and other factors – such as age, gender and socioeconomic status – directly impacted pretrial decisions. Since being jailed while awaiting trial has a direct effect on case outcomes such as conviction rates and sentencing, racial disparities in the pretrial process have a ripple effect throughout the justice system. The U.S. Supreme Court has described the pretrial process as “perhaps the most critical period of the proceedings,”16 thus the impact of race on decisions made during this time, including bail, is of particular importance.
Money Bail Isn’t Effective at Reducing Failure to Appear or Re-arrest Rates
Money bail is widely believed to incentivize people to show up at court hearings; however, the increased use of money bail and higher bail amounts has coincided with an increase in FTA rates. Whereas in the 1960s and 70s the failure to appear rate among the most populous cities was 6-9 percent,17 the FTA rate for felony cases in 2006 was 22 percent.18
According to 2006 data on people facing felony charges in the 75 most populous counties, about 12 percent were under the supervision of a pretrial service agency. Many pretrial service agencies have implemented programs that have high rates of success in lowering re-arrests of people awaiting trial and, if further expanded, it is likely that the rate of re-arrests could be reduced substantially. For example, a program in Santa Cruz County, California found that 92 percent of people under pretrial supervision were not re-arrested for new offenses.
Bail Schedules Aren’t Risk-based and Lead to More Pretrial Incarceration
Some jurisdictions use “bail schedules” or “bond schedules” to determine money bail amounts for alleged offenses. Such schedules may be legislatively mandated or used informally, and are intended to standardize the amount of bail regardless of an individual’s personal characteristics or demographics.19 Among states, and even within a state, the amount of bail set for a certain offense may vary widely. Often the bail amount is grossly inflated, sometimes greatly exceeding the potential cost of damage or loss were the person found guilty.
Further, the severity of the charge is not correlated with risk of flight or re-arrest, making bail schedules an irrational way to determine whether someone should be held pretrial.
Despite the unknowns concerning the effectiveness of bail schedules, they are still relied on heavily due to the general acceptance of money bail in the judicial system. A 2009 study of 112 of the most populous counties in the U.S. found that 64 percent of the participating jurisdictions utilized a bail schedule when determining money bail amounts.20 Bail schedules are in effect the pretrial equivalent of “mandatory minimums,” and result in people who could be safely released from jail remaining incarcerated.
People Without Counsel at Bail Hearings may Receive Higher Bail Amounts
It is common sense that someone whose liberty is at stake would be better served by having an attorney present. Yet the application of the Sixth Amendment, which assures the right to an attorney, is largely neglected at hearings where bail is set, as many jurisdictions “instead rely on their own sense as to when counsel should be appointed, if at all.”21 As of 2011, only ten states and the District of Columbia provided for indigent access to counsel at initial appearance hearings before a judicial official, while ten states had no provisions for indigent defense at that stage of criminal proceedings. The remaining 30 states provided indigent access to counsel that varied among different jurisdictions.22
Given the rise in the use of money bail, there is concern that freedom is granted to those who can afford to pay bail or those who can pay a percentage to a bondsman; thus, having an attorney present at a bail hearing to argue for a lower bail amount can be critical.
High Bail Makes People More Susceptible to Plea Bargains
People held in jail because they can not make bail are put under greater pressure to enter a plea bargain, which has become the de facto standard for resolving more than 95 percent of criminal cases. Prosecutors can and often do ask judges for pretrial detention as leverage in plea bargaining negotiations with people who have limited financial resources. Those with children at home, a job or housing at stake, or a desire to avoid the harsh conditions of jail are coerced into entering guilty pleas to avoid pretrial detention, particularly if the time they have already served will count toward their sentence.23 This not only fulfills the prosecutor’s goal of closing another case with a “win” but also enables the criminal justice system to function, as it couldn’t accommodate numerous people who choose to go to trial rather than accept plea bargains.24 In this way, high bail amounts mean more plea bargains, which help to keep the criminal justice system moving even if justice is not necessarily served.
“We see clients at arraignment not wanting to plea, saying they want to fight their case. Then they hear the bail that the prosecutor is going to ask for, and they’ll turn to their defense lawyer and say, ‘I’ll take the plea,’” said Robin Steinberg, executive director of the Bronx Defenders.25
Conviction rates for people charged with felonies stood at 68 percent in 2006, with 96 percent of convictions resulting from guilty pleas. Only 3 percent of those cases actually went to trial.26 This high rate of guilty pleas is a matter of concern because people often will plead guilty despite their innocence. A 2012 study suggested that in an effort to avoid the ominous maximum penalties of a potential conviction in an inherently coercive27 and unfamiliar system, more than 50 percent of innocent people held in jail pleaded guilty to get a lower sentence rather than risk a conviction – albeit wrongful – that would have resulted in harsher punishment.28
Particularly in the face of mandatory minimum sentences, people in jail pretrial have a strong incentive to take a “lesser” deal from a prosecutor if they fear their attorney (who in many cases is an overburdened public defender) will not be able to prove their innocence.29 All of these factors demonstrate how pretrial detention is wielded to serve purposes other than assuring court appearance and public safety. This is an abuse of power that leads to wasteful use of taxpayer dollars, unfair treatment of people based on their financial resources and violations of their constitutional rights.
Alternatives to Money Bail that Protect People’s Rights and Public Safety
There are a number of strategies, some of which are discussed below, that can reduce the negative impacts of money bail on low-income populations while safely decreasing the number of people held in pretrial detention.
Valid risk assessments can provide risk-supported decision-making and eliminate the need for money bail.
Risk assessments are tools that, when used properly, can provide a dependable prediction as to whether a person will be involved in pretrial misconduct, whether by failure to appear in court or being a danger to the community. Typically in the form of an electronic or paper survey, risk assessments provide a method to make an objective assessment while minimizing bias on the part of the interviewer. The assessment findings provide a classification, usually “low risk,” “moderate risk” or “high risk,” which aids in determining the most appropriate form of bail and pretrial supervision.30
Although the use of pretrial risk assessments is intuitive and based on more than 30 years of research, the practice of assessing risk in determining pretrial release and bail amounts is not commonplace. Field experts estimate that only about 85 jurisdictions in the U.S. use a validated risk assessment tool in their pretrial release determinations.31 However, the use of valid risk assessments for release options other than money bail is crucial for reducing the number of people held in jail while ensuring public safety.
Risk assessments support the release of those who can safely be freed from jail (with or without additional supervision conditions), and provide insight into the possible need to detain others who may pose a safety or flight risk. Few states have codified the use of risk assessments but more are beginning to implement such tools.
The use of citations instead of arresting and transporting people to be booked can provide cost savings.
The use of citations has been recommended since the 1920s to reduce arrests and subsequent dependence on bail bondsmen. Current models using citations include a risk assessment component (either completed by the police officer or a pretrial service agency), which allows officers to confirm that someone would be an appropriate candidate for a citation versus going through the booking process at a jail. Technology that allows fingerprinting and positive identification of people charged with crimes is now available to assist police officers in the field. The state of Kentucky has codified the use of citations and is currently in the process of releasing its evaluation findings. Other jurisdictions that have started to increase their use of citations include Maryland and the District of Columbia. A 2012 survey found public support for citations in lieu of arrest for various types of offenses.32
Many people can be safely released on their own recognizance.
Risk assessment studies indicate that people who are rated low risk and released from jail on their own recognizance generally complete the pretrial process successfully by attending court hearings and not having any incidence of re-arrest. They also are more likely to complete the pretrial process successfully by not having additional court-ordered expectations placed on them,33 as they are already attending to other responsibilities.
This means there is a large proportion of people held in jail who can be released on their own recognizance and trusted to comply with pretrial requirements while avoiding re-arrest.
One of the negative pretrial outcomes that judicial officials are trying to avoid is failure to appear, because this disrupts already overbooked court schedules. However, many missed court appearances are not due to flight. Common reasons given for missing a hearing include forgetfulness, oversleeping, starting a new job, being told the wrong court room and needing to take a family member to the doctor.34 Recognizing and addressing these issues may help lessen the severity of a missed court appearance and encourage the use of releasing people on their own recognizance.
Many more people could be safely released with conditions while awaiting trial.
When used in conjunction with a valid risk assessment, judicial officials may safely release some people with conditions that will ensure their return to court and safety in the community. Common conditions include alcohol and/or drug testing, holding or obtaining a job, attending education classes, curfews, no contact with victims or witnesses,35 and remaining under the supervision of a family member, community service organization or pretrial service agency. However, judicial officials should take precautions to match the conditions with the level of risk determined by the risk assessment. Placing inappropriate or unnecessary conditions on people with low risk ratings, such as drug testing or additional super-vision, can result in higher failure rates.36
It is recommended that minimal conditions be placed on those who pose less risk and are already attending to other responsibilities. Conditions are generally more useful for people who score high on their risk assessment. Judicial officials should also take care to order requirements that match the needs of each individual.37 For example, someone who does not have substance abuse problems or a history of substance abuse may not need to undergo alcohol or drug tests; adding such an unneeded condition could cause unnecessary technical violations should the person forget to show up for testing.
Effective pretrial service agencies can provide the risk assessment and supervision needed to monitor people while their cases are pending.
As of 2011, less than a third of the 3,007 counties in the U.S. were served by about 300 pretrial service agencies.38 However, effective pretrial service agencies have been safely saving jurisdictions money since the 1960s by reducing the need to keep people in jail and effectively monitoring them in the community prior to trial. Pretrial service agencies have a demonstrated track record of reducing jail populations, assuring court appearances and maintaining safe behavior among their clients.
This is accomplished by providing three main services: risk assessment, bail recommendations and community supervision. Most pretrial service agencies use an assessment tool to determine risk for failing to appear at court hearings and engaging in illegal behavior while awaiting trial. Usually under very strict time constraints, pretrial service agency staff will conduct fact-finding to assure the information gathered from all parties is accurate. They will then make recommendations to judicial officials regarding bail decisions. If someone is released under a condition of pretrial service supervision, the pretrial service agency will then provide supervision services as needed in accordance with the risk assessment findings.
Another component that some pretrial service agencies provide (not examined here) are diversion programs in which low-risk individuals agree to certain requirements in exchange for having their record cleared. Not all pretrial service agencies provide diversion programs.
Court notifications are an effective way to ensure people appear for their court hearings.
People who are awaiting trial in the community may miss a court date for myriad reasons that are unrelated to an unwillingness to appear, ranging from lack of transportation, uncertainty about the criminal court process or just plain forgetfulness. Pretrial service agencies have been effective in reducing the number of FTAs for people under supervision, but for the thousands of people who are released pretrial without supervision, FTAs may still be a challenge without reminders of court dates. Those who are incarcerated because they failed to appear in court are not generally considered to be a risk to public safety, and keeping them in jail is a drain of public resources. Jurisdictions that have implemented court date notification systems show promising results in reducing FTAs.
Court notification systems – such as text messages or phone calls made either by a service or a volunteer or court employee – have been proven to reduce FTAs and save thousands of dollars.39 Failures to appear require a substantial amount of paperwork, add an extra burden to local law enforcement and the courts, and lead to increased jail populations and thus increased incarceration costs.40 Implementing a court date notification system can help reduce FTA rates, thus saving resources and reducing the number of people held in jail.
The Current Unfair Bail Bonding System Persists Largely Due to Profit
For-profit bail bonding has become a multi-billion dollar industry backed by special interest groups and large insurance companies. As such, the industry has been successful in using its wealth and influence to promote industry-friendly legislation and thwart reform efforts.
Until the late 1950s, for-profit bail bonding was typically performed by bondsmen who used their own money and property to serve as collateral for the bonds they wrote.
Around that time, savvy bail agents such as Florida’s Hank Snow sought to expand the industry by getting the financial backing – also known as underwriting – of national and regional insurance companies. This allowed bondsmen to write more and larger bonds. While some for-profit bail businesses are still locally-owned, even those are almost all backed by insurance companies. In fact, some states like Florida no longer allow bail agents to underwrite themselves.
With the support of insurance companies and the coordination of newly-formed trade associations the industry grew rapidly, but it wasn’t until the early 1990s that the for-profit bail bonding influence machine truly began to make its power known. Today, the industry does a conservative estimate of $2 billion in business annually and is supported by around 30 insurance companies. An estimated 15,000 people are employed in the industry, and commercial bail bond agencies can be found in nearly every jurisdiction within the 46 states that allow the practice.41 Bail bonding is big business and has the power, money and organization to affect criminal justice policy and practices nationwide.
The Influence of the For-profit Bail Bonding Industry
As a multi-billion dollar industry with the institutional backing of large insurance companies, bail bond agents and associations have the resources to hire professional lobbyists to protect their interests in statehouses across the country, particularly when legislation involving pretrial services or forfeiture regulations is in play. In recent years bail bond lobbyists have been hired in Florida, Texas, California, Virginia and North Carolina, to name but a few. As in other industries, lobbyists not only work by testifying in front of committees but also by building relationships with legislators. In Maryland, for example, bail bondsmen in 2011 hosted a social event for lawmakers during the legislative session at the Annapolis Yacht Club.42
Each state records lobbying spending differently, making a detailed analysis difficult. However, an American Bar Association study indicated that the for-profit bail industry engages in “multimillion dollar lobbying efforts”43 to increase its profitability and attack public pretrial service agencies. In California alone, the bail industry has spent almost a half-million dollars on lobbying since 2000.44
The effects of strong lobbying efforts should not be underestimated. In places where the for-profit bail bonding industry has launched attacks on pretrial reform, they have occasionally triumphed in the face of opposition by the courts, law enforcement and the public.
Further, campaign donations from the bail bonding industry are substantial. An analysis of state campaign donation records reveals that bail agents, businesses and associations have contributed over $3.1 million to state-level political candidates from 2002 to 2011.45 Eighty-two percent of those donations ($2,600,070) were made within ten states – primarily California, Texas and Florida.
In 1992, members of the for-profit bail industry met to discuss ways to better combat what they perceived as unfair competition by government-funded pretrial service programs. They formed what would become the American Bail Coalition (ABC), a national organization committed to lobbying for the for-profit bail industry. ABC’s members include about half of the industry’s largest insurance companies and the coalition has become the country’s leading for-profit bail advocacy organization. In 1994, ABC joined forces with the American Legislative Exchange Council (ALEC), a powerful conservative group that provides dues-paying corporate members with access to issue-friendly legislators in a private setting for the purposes of influencing policy. ABC has referred to ALEC as a “life preserver” for the organization’s ability to turn ABC’s agenda into actionable legislation.
ABC president William Carmichael sits on ALEC’s Private Enterprise Board, while ABC executive director Dennis Bartlett served on ALEC’s Public Safety and Elections taskforce before the taskforce was eliminated in April 2012.46
ABC senior legal counsel Jerry Watson, who chaired ALEC’s Private Enterprise Board from 2006 to 2008, received ALEC’s Leadership Award in 2010. “There is no way to accurately evaluate the benefits thus far to our industry by our involvement in ALEC,” he said.47
Together, ABC and ALEC have worked to draft model bills that reduce regulation and oversight of bail agents, pro-mote higher bail amounts in bail schedules, increase the court’s burden when pursuing bond forfeitures, and restrict the funding of pretrial service agencies and limit those eligible to participate in pretrial release programs.
Recommendations for Reform
As a result of extensive research, the Justice Policy Institute has set forth the following recommendations for reform:
1. Eliminate money bail.
Some U.S. jurisdictions have all but eradicated the use of money bail in their pretrial process. Such jurisdictions typically have an effective pretrial service agency, validated risk assessments and other processes in place to assure people return to the community safely and attend their court hearings. Since 1968, for example, the District of Columbia has had a robust pretrial services system that implements all the provisions of the Bail Reform Act of 1966. Due to their extremely limited use of nonfinancial bail options, for-profit bail bonding companies, although not banned, are nonexistent because there is no market for their business.48 Currently 80 percent of people charged with an offense in DC are released on non-financial bail options to await resolution of their charges, while 15 percent are held in pretrial detention. Only 5 percent are released using some form of financial bail, but there is no use of for-profit bail bondsmen. The Pretrial Services Agency has reported that 88 percent of their clients successfully complete the pretrial process by appearing in court and not being re-arrested.49
2. Ban for-profit bail bonding companies.
Four states have banned the involvement of private, for-profit bail businesses: Kentucky, Wisconsin, Illinois and Oregon. Around the U.S., various local jurisdictions have chosen to ban bail bondsmen even if their state has not, such as Broward County, Texas50 and Philadelphia, Pennsylvania. As money bail already presents a number of problems, the addition of for-profit companies only serves to reinforce the practice of money bail. For-profit bail bonding agencies have an interest in preserving money bail, which is the source of their income, at the expense of individuals facing charges and their families, the criminal justice system and taxpayers.
3. Include the voices of all involved parties, including victims, to ensure that reforms to the pretrial process are meaningful and effective.
As victims and their advocates provide a unique and critical understanding of the harm done as a result of crime, it is important to include them in the pretrial release decision-making process. As issues differ depending on the specifics of each alleged offense, a systematic consideration of victim advocates’ perspectives or guidance may help in determining the most effective pretrial processes. Victim advocates will also be supportive in creating a more just process as victims are interested in seeing the person who actually committed the harm be held accountable, rather than having innocent people who cannot afford to make bail enter into plea bargains just so they can get out of jail.
4. Expand community education programs that inform people how to navigate the pretrial process.
The confusing and inherently coercive pretrial process is challenging even for those with adequate financial resources and educational backgrounds. Understanding the process, one’s legal rights and what to expect can help people navigate the pretrial process more successfully. However, many are susceptible to fallacies in the pretrial process because they are concerned about their responsibilities outside of jail. It is hard for people to weigh the collateral consequences of a criminal record beyond the immediate impact of losing one’s job or not being able to take care of one’s children, for example, while they remain incarcerated. Informing communities about the pretrial process and the implications of pretrial decisions could reduce bail amounts, decrease the number of plea bargains to false charges and promote a better, more just pretrial process.
5. Use citations and summons to reduce the number of people being arrested and processed through jails.
This is one solution to our jail overcrowding problem, as police officers can more easily dispense citations while on the streets without needing to transport individuals to a booking facility. If more information is necessary, police officers, working alone or in conjunction with pretrial service agencies, can use risk assessments to issue citations and summons instead of arresting someone accused of an offense.
6. Use standardized, validated risk assessments to determine whom to release from jail and how to release them.
Before making risk assessments mainstream, it is important to ensure the risk assessment put in place is appropriate. Standardized, validated risk assessments are the key to maintaining objectivity in the pretrial process. These tools produce data that result in informed bail decisions. Some jurisdictions are currently using risk assessments that have not been validated. Not only can non-validated assessments reduce public safety, they may also reinforce racial and ethnic biases in the system. Once the proper tool is in place, a process for applying risk assessment findings into the pretrial decision-making process must be implemented. Judicial officials and all parties involved must be educated about the assessment tool and how it can assist in making meaningful pretrial release decisions.
7. Implement measures of pretrial detention and release services to evaluate current programming and better inform pretrial reform efforts.
Currently, no standardized data is being collected relative to pretrial detention across the nation for both misdemeanors and felonies. There is little consistent measurement among the many pretrial service agencies regarding the outcomes of their services. In order to better understand the impact of pretrial detention and how the U.S. is performing compared to other nations, national data on pretrial detention should be gathered from jails and detention facilities that hold people going through the pretrial process.
Additionally, within reasonable expectations, pretrial service agencies should utilize measures already in place to provide the public with a clear picture of their work and their effectiveness in preventing failures to appear and re-arrests of people awaiting trial.
8. Reporting requirements for the for-profit bail bonding industry should be expanded.
Currently there is little regulation or oversight of the bail bonding industry. Bail bondsmen exercise a tremendous amount of power over those held in jail by choosing, based on factors related to their own financial gain, for whom they will post a bond.51 Bondsmen also have the ability to put people on bond back into jail at any time, for any reason. For-profit bail bondsmen play a crucial role in our justice system that affects both public safety and whether people remain in jail. Only when for-profit bail bonding companies are required to report on indicators of pretrial performance and outcomes will policymakers be able to make educated decisions about the use of money bail and bail bonding as opposed to non-financial pretrial release options.
9. Utilize pretrial supervision agencies.
Cost studies confirm that it is much more affordable to assess and monitor people in the community through pretrial services rather than keep them in jail. In order to reduce the justice system’s reliance on jails, pretrial services should be expanded to allow for the safe and informed release of persons awaiting trial. Evidence-based practices, such as screenings with a validated risk assessment, are important to ensure the effectiveness of such programs. Pretrial service agencies can assist law enforcement and judicial officials by providing risk assessment and fact-finding services. Using the findings from risk assessments, pretrial service agencies can provide appropriate community supervision to ensure that people complete the pretrial process successfully. Given that pretrial service agencies may also provide other programs that can help those awaiting trial (such as substance abuse treatment, job placement, etc.), longer term outcomes of money bail versus pretrial services should be examined.
10. Use court notification systems.
Through personally manned or computerized programs, reminding people about their upcoming court hearings has proven to reduce FTA rates. Notification systems should be a part of every court’s budget to ensure that time and money are not unnecessarily spent trying to track down or punish those who miss court hearings.
11. Amend the Bail Reform Act and bail policies to comply with the Equal Protection Clause.
Current practices allow for people to be treated differently within the criminal justice system based on their financial status; this may be a violation of the Equal Protection Clause and should be remedied. Elimination of money bail is an important step towards eliminating disparities in our criminal justice system.
* Tracy Velázquez is Executive Director of the Justice Policy Institute (JPI), and Melissa Neal and Spike Bradford are JPI Senior Research Associates. This article, written exclusively for Prison Legal News, is largely excerpted from two JPI reports, “Bail Fail: Why the U.S. should end the practice of using money for bail” by Melissa Neal, and “For Better or For Profit: How the bail bonding industry stands in the way of fair and effective pretrial justice” by Spike Bradford. Both publications are available in their entirety at www.justicepolicy.org.
[Ed. Note: For prior coverage of the bail bonding industry in Prison Legal News, see: PLN, Sept. 2012, p.36; Dec. 2010, p.23; Jan. 2009, p.30; and Dec. 2007, p.34].
1 Todd D. Minton, “Jail Inmates at Midyear 2011 - Statistical Tables,” U.S. Bureau of Justice Statistics, NCJ 237961 (April 2012), www.bjs.gov/content/pub/pdf/jim11st.pdf.
2 Ibid, p.1.
3 Eric Holder, “Attorney General Eric Holder Speaks at the National Symposium on Pretrial Justice,” U.S. Department of Justice (June 1, 2011), www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-110601.html.
4 Thomas H. Cohen and Brian A. Reaves, “Felony Defendants in Large Urban Counties, 2002,” U.S. Bureau of Justice Statistics, NCJ 210818 (February 2006),
5 Shima Baradaran and Frank McIntyre, “Predicting Violence,” Texas Law Review, 90:558 (2012).
6 Wayne H. Thomas, Jr., Bail Reform in America (Univ. CA Press 1976), in “The History of Bail and Pretrial Release” (September 2010) [see footnote no. 48].
7 Michelle Alexander, “Go to Trial: Crash the Justice System.” Opinion article, The New York Times (March 10, 2012), www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html.
8 Mary T. Phillips, “Pretrial Detention and Case Outcomes, Part 2: Felony Cases,” New York City Criminal Justice Agency, Inc., (March 2008).
9 Marian R. Williams, “The Effects of Pretrial Detention on Imprisonment Decisions,” Criminal Justice Review, 28(2):299-316 (Autumn 2003).
10 The Abell Foundation, “The Pretrial Release Project: A Study of Maryland’s Pretrial Release and Bail System,” p.11 (September 12, 2001).
11 Minton (April 2012), p.6.
12 Estimates based on population statistics from Table 1 in Karen R. Humes, Nicholas A. Jones and Roberto R. Ramirez, “Overview of Race and Hispanic Origin: 2010,” 2010 Census Briefs (March 2011), www.census.gov/prod/cen2010/briefs/c2010br-02.pdf, and jail population statistics from Table 6 in Minton (April 2012), p.6. Estimates are lower than actual rates as they are based on total population statistics and not limited to adult population statistics.
13 John Wooldredge, “Distinguishing Race Effects on Pre-Trial Release and Sentencing Decisions,” Justice Quarterly, 29:41-75 (February 2012).
16 “Judicial Proceedings Before Trial,” http://law.justia.com/constitution/us/amendment-06/17-right-to-counsel-in-nontrial-situations.html.
17 Barry Mahoney and others, “Pretrial Services Programs: Responsibilities and Potential,” National Institute of Justice, NCJ 181939, p.31 (March 2001), www.ncjrs.gov/pdffiles1/nij/181939.pdf.
18 Thomas H. Cohen and Tracey Kyckelhahn, “Felony Defendants in Large Urban Counties, 2006,” U.S. Bureau of Justice Statistics, NCJ 228944 (May 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf.
19 Lindsey Carlson, “Bail Schedules: A Violation of Judicial Discretion?” Criminal Justice 26 (2011).
20 Pretrial Justice Institute, “Pretrial Justice in America: A Survey of County Pretrial Release Policies, Practices, and Outcomes” (2010), www.pretrial.org/Docs/Documents/Pretrial%20Justice%20in%20America.pdf.
21 Phyllis E. Mann, “Ethical Obligations of Indigent Defense Attorneys to Their Clients,” Missouri Law Review, 75:715-749 (October 5, 2010).
22 Douglas Colbert, “Prosecution Without Representation,” Buffalo Law Review, 59(2):333-453 (April 2011).
23 Mahoney and others (March 2001), p.16.
24 Alexander (March 10, 2012).
25 Nick Pinto, “Bail is Busted: How Jail Really Works,” The Village Voice (April 25, 2012), www.villagevoice.com/2012-04-25/news/bail-is-busted-new-york-jail/all.
26 State Court Processing Statistics data as retrieved from the Felony Defendants in Large Urban Counties reports, 1992-2006.
27 Q&A session of The Burden of Bail: Addressing Challenges to Indigent Defense at Bail Hearing.
28 Lucian E. Dervan and Vanessa Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem” (May 31, 2012), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2071397.
29 Chantale Lacasse and A. Abigail Payne, “Federal Sentencing Guidelines and Mandatory Minimum Sentences: Do Defendants Bargain in the Shadow of the Judge?” Journal of Law and Economics, 42(1):245-269 (April 1999); Erik Luna, “Mandatory Minimum Sentencing Provisions Under Federal Law,” testimony delivered to the U.S. Sentencing Commission (May 27, 2010), www.cato.org/publications/congressional-testimony/mandatory-minimum-sentencing-provisions-under-federal-law.
30 Marie VanNostrand and Kenneth J. Rose, “Pretrial Risk Assessment in Virginia: The Virginia Pretrial Risk Assessment Instrument,” VA Dept. of Criminal Justice Services (2009).
31 Email from Cherise Burdeen, Pretrial Justice Institute (July 19, 2012).
32 Marketwise, “Charlotte-Mecklenburg 2012 Criminal Justice System Survey Presentation of Results” (April 1, 2012).
33 James Austin and others, “Kentucky Pretrial Risk Assessment Instrument Validation,” The JFA Institute (October 29, 2010).
34 Personal communication with David M. Bennett (August 29, 2012).
35 VanNostrand and Rose (2009), p.23.
36 Austin and others (October 29, 2010).
37 Amy L. Solomon and others, “Putting Public Safety First: 13 Strategies for Successful Supervision and Reentry,” Public Safety Policy Brief, No. 7 (December 2008).
38 Laurie Robinson, “National Symposium on Pretrial Justice Panel: The Next 50 Years,” remarks of the Assistant Attorney General (June 1, 2011), www.ojp.usdoj.gov/newsroom/speeches/2011/11_0601lrobinson.htm.
39 Bureau of Justice Assistance, “Pretrial Diversion in the 21st Century: A National Survey of Pretrial Diversion Programs and Practices,” U.S. Department of Justice (forthcoming).
40 Connie Clem, “69 Ways to Save Millions,” American Jails, p.15
(November/December 2009), www.pretrial.org/Docs/Documents/69%20Ways%20to%20Save%20Money-Nov-Dec%202009.pdf.
41 Professional Bail Agents of the United States, “About Us” (August 2012), www.pbus.com/displaycommon.cfm?an=1.
42 Materials made available at the information table during the Maryland Assembly (2011).
43 American Bar Association, “Silver Gavel Award, Interview with Laura Sullivan” (2011), www.americanbar.org/content/dam/aba/images/public_education/gavel_radio_2011.pdf.
44 Amanda Gullings, “The Commercial Bail Industry: Profit or Public Safety,” Center on Juvenile and Criminal Justice (2012).
45 A search was done at www.followthemoney.org for all states using the terms “bail” and “surety.” Results were analyzed and researched and, where the researcher was unsure, records removed from the calculation to ensure a conservative estimate. This analysis does not include donations to local-level players such as judges, sheriffs and county board members.
47 www.aiasurety.com/home/news/CompanyNews/2009.aspx/articles/65 and www.prweb.com/releases/2010/08/prweb4434154.htm.
48 Timothy R. Schnacke, Michael R. Jones and Claire M. Brooker, “The History of Bail and Pretrial Release,” Pretrial Justice Institute, p.13 (September 2010).
49 Pretrial Justice Institute, “The D.C. Pretrial Services Agency: Lessons from Five Decades of Innovation and Growth,” Case Studies, 2(1),
50 Shawn D. Bushway and Jonah B. Gelbach, “Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model,” Yale University Department of Economics Labor/Public Economics Workshop, p.9 (February 14, 2012).
51 Robert F. Kennedy, “Testimony by Attorney General Robert F. Kennedy on Bail Legislation Before the Subcommittees on Constitutional Rights and Improvement in Judicial Machinery of the Senate Judiciary Committee,” U.S. Department of Justice, p.2 (August 4, 1964), www.justice.gov/ag/rfkspeeches/1964/08-04-1964.pdf.
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