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When Freedom Isn’t Free

The bail industry wants to be your jailer.

In a Dallas Hilton conference room last summer, a few dozen state lawmakers from around the country gathered for a closed-door presentation about an all-American industry under threat. The pitch was part of an annual conference hosted by the American Legislative Exchange Council (ALEC), a powerhouse conservative consortium that promotes — and often drafts — pro-business legislation. The endangered industry was bail.

Bail is an essential lubricant of American justice, asserted Nicholas Wachinski, executive director of the American Bail Coalition, a trade group for insurance companies that underwrite bail bonds. But now bail agents are under siege by so-called reformers, who argue that the traditional bail system forces poor defendants to choose between paying fees they can’t afford and sitting in jail until they go to trial. A growing number of states — New Jersey, Colorado, Virginia, Delaware, West Virginia, Hawaii and others — are limiting the use of bail for defendants who don’t pose a threat, or replacing for-profit bail with government supervision.

Of course, Wachinski said, the bail bond industry will continue its tireless lobbying to protect its lucrative franchise, but he was there with another message: Innovation! New products! New markets! “A brave new world!” Why should bail bonds be only for defendants who are awaiting trial? How about bail bonds for a whole new class of customers: people who have already been convicted.

“My task,” Wachinski told the crowd, “is to bring the sexy side of bail back.”

In a courtroom just outside Jackson, Mississippi, Kristina Howell was about to experience a new, “sexy side of bail.”

After spending two days and nights in jail for drunk driving this past August, Howell was brought to the Byram city court, where she pled guilty and was told she had to pay a fine of $1,044. If she couldn’t come up with the money on the spot, she was headed back to jail. “I panicked,” said Howell, who lives and supports her son “paycheck to paycheck.”

But there was one other option. The judge explained to Howell that she could avoid jail by purchasing a new kind of bail bond, a post-conviction device that bail agents in Mississippi are busily promoting around the state. It would cost $155, and would buy her two extra months to come up with the money to pay her fine. Howell was then escorted to another room, where Patty Hodges from the Mississippi Bonding Company sat ready with the paperwork.

Kristina Howell holds her “get out of jail box” for money that goes toward paying the cost of fees relating to her case.

Kristina Howell holds her “get out of jail box” for money that goes toward paying the cost of fees relating to her case.

If Howell had been arrested two months earlier, her experience would have been different. Before this summer, those who found themselves facing a fine they couldn’t afford were allowed to pay the court in installments. But that system wasn’t working, says Dale Schwindaman, a Byram judge. “People would sign up for a payment plan, but then they wouldn’t come in and pay,” he said. Under the new system, if a person doesn’t return to court to pay her fines, it’s the bail agent’s job to track her down. This new system takes some of the burden off court clerks, who were hounding defendants to pay, as well as local law enforcement officers, who were tasked with rounding up the people who failed to settle their debts. “It gives people some time to come up with the money, and they also give us a way to secure them actually paying the fine,” said Schwindaman. And it gives the bail bondsman a tidy profit.

Mississippi has been a kind of laboratory for bail industry experiments. The state is the country’s poorest and has the third-highest per-capita incarceration rate. The Mississippi Bail Agents Association exercises strong legislative influence, boasting on its website that “[s]ince 1992, there have only been two years in which the MBAA did not succeed at making changes to the state bail statutes.” The bail industry has given more in campaign contributions per capita to state politicians in Mississippi than anywhere else. Versions of post-conviction bail legislation have also passed in South Dakota and Michigan, a victory celebrated by bail agents but not yet put into widespread practice.

“It’s just another tool in the toolbox,” says Gene Newman, a bail bondsman who claims credit for writing Mississippi’s post-conviction bond bill, which passed the legislature in 2007. After a person is convicted, a judge might order the defendant to complete certain requirements to avoid jail, paying a fine (as in Howell’s case), going to rehab, or submitting to other types of monitoring. In order to ensure that the person returns to court and proves she has met the requirements, the judge can require her to purchase a bail bond. As with traditional pretrial bonds, it becomes the bail agent’s responsibility to locate and apprehend people who don’t return to court.

Mississippi doesn’t track how widely the new bonds are being used, but Newman said he has been traveling the state, “selling them to the courts.” He predicts that other states will follow Mississippi’s lead, given the packed jails and exploding caseloads for probation and parole officers across the country. “The system is so overwhelmed,” he says. “They need private help.”

Back in Byram, Kristina Howell paid the $155. It was a hefty fee for Howell, who earns about $300 a week waitressing at a local Mexican restaurant, but it beat going back to jail. By mid-October, her bond was up and the money for her court fine was due. She had paid down some of it, but still owed $744, and she pleaded for an extension. Her bail agent, who had the power to revoke the bond and send Howell back to jail, decided to give her a break. “She’s doing the best she can,” she told the court. “I don’t mind continuing the bond.” The judge gave Howell two extra weeks to come up with the rest of the money.

After her hearing, Howell went to the nearest pawnshop and hocked her engagement ring and a gold necklace from her baptism. During her frantic search for money, electricity bills had piled up. The Internet was shut off. But a few days before her final court date, Howell scraped together the rest of what she owed, mostly by borrowing from friends. “Right now I’m just trying to make enough money to keep anything else from getting cut off,” she said.

She was not done yet. In addition to the cost of her bond, Howell would be paying a stack of other bills to private contractors. Defendants in Mississippi courts pay a growing share of the court’s administrative expenses— including fees for private probation, private drug tests, and private DUI classes. By the time she has completed all her requirements, Howell’s payments to private companies will total more than $1,000, effectively doubling her original court fine.

The United States is one of only two countries — the other is the Philippines — with a private bail industry. In America the process typically works like this: After people are arrested, either they are released on their own recognizance or a judge will require them to put up bail money to be returned once they appear for trial. (Only those accused of the most violent crimes are denied bail entirely.) Those who can’t afford to pay their bail have the option of either staying in jail or using a bail agent, who will charge a nonrefundable fee—usually 10 percent of their bail—to post a bond and bail them out. Defendants do not get that fee back even if they are found innocent. In exchange for the fee, bail agents promise courts that they’ll track down defendants who fail to appear for their next court date. If the defendant can’t be located, the agent is responsible for paying the entirety of the bail. (In reality, courts are often inefficient about collecting the money.)

“We’re their jailer,” says Scott Hall, a bail agent and the president of the Professional Bail Agents of the United States. “Every time I sign my name [to a bail bond] I’ve got to bring a body or bring a check.”

In many other countries’ court systems, the influence of commercial bail is seen as “a public mischief in that it attempts to pervert and obstruct the court of justice,” wrote F. E. Devine in his 1991 book, Commercial Bail Bonding, which remains the only international survey on pretrial release. In some countries, such as England and Canada, making a profit by posting a defendant’s bail is a crime.

America’s current pretrial system is an outgrowth of English common law, which like many other court systems relies on the word of defendants and relatives, as well as collateral, such as property, to safeguard against people skipping court. This evolved, in the entrepreneurial American spirit, into the practice of posting bail for profit, and the business has since become an integral part of the justice process in most of America. Thanks to the influence of the bail bond industry—mostly subsidiaries of major insurance companies—bail amounts have surged, generating huge profits for the industry. In 1994, 24 percent of defendants were released on a commercial bail bond. By 2004, that number was 42 percent. Average bail amounts for those detained pretrial on felony charges more than doubled between 1992 and 2006, from $40,000 to $90,000. It’s estimated that bail bonds are a $14 billion industry1.

$14 billion industry1Between 1992 and 2006, the number of felony defendants released on their own recognizance decreased from 41% to 28%. Over that same time period, bail costs surged, from an average amount of $25,400 in 1992 to $55,500 in 2006.

Opponents of this system argue that it effectively punishes poor people who can’t afford to get themselves out of jail. In 2011, Attorney General Eric Holder characterized the costs of bail as an impediment to lowering prison populations, noting that nonviolent, non-felony offenders remain in custody “because they simply cannot afford to post the bail required—very often, just a few hundred dollars.” While they languish in jail, they may lose their prospects of returning to a normal life. Research has shown that those who remain detained while awaiting trial were more likely to go to prison and received longer sentences compared to those who were released. It’s harder to mount a robust defense from jail—to find witnesses, to meet with an attorney, to raise the money to pay for a defense. Moreover, jailed defendants could lose jobs, housing, custody of their children, and ties to the community that may influence judges and juries at sentencing.

Studies indicate that both commercial bail and nonfinancial alternatives such as government tracking can be effective at ensuring that defendants return for trial. Many recent reform efforts2 have focused on developing those nonfinancial means.

recent reform efforts2Most recently, New Jersey passed a comprehensive bail reform package that allowed judges to deny bail based on public safety concerns, and set up a government-run pretrial services agency, which will serve as a non-monetary alternative to release low-risk defendants from jail. Much of the advocacy behind the legislation centered on a report commissioned by the Drug Policy Alliance that found nearly 75 percent of those held in New Jersey jails are there waiting for their trial for an average length of 314 days. Nearly 40 percent of those inmates were incarcerated because they couldn’t afford bail. Twelve percent had a bail amount of $2,500 or less.

New Jersey is joining a growing number of states that are moving away from pretrial systems that require the exchange of money for jail release (commercial bail bonding is just one vehicle for that financial arrangement. Other reforms often involve establishing a “risk score” that calculates how likely a defendant is to skip court, based on their crime and prior offenses, to help judges determine whether they need to set bail. Those considered low-risk are typically released without financial conditions, and some programs also include government supervision for low-level defendants to help ensure they show up for their court dates.

“It really boils down to a philosophy of whether you think people should have to pay to get out or not,” says Robert Morris, an associate professor of criminology at the University of Texas at Dallas. “[Bail agents] handle the release of most defendants, period. It would require massive government spending to handle everything pretrial.”

Industry advocates argue that without for-profit bail bonds, there would actually be more people in jail. “I don’t believe there are people in jail who can’t afford bail,” says Eric Granof, vice president of communications for AIA Bail Bond Surety, an organization representing some of the largest insurance companies that underwrite bail bonds. “There are payment plans, and families can work with bail bondsmen to get people out. Saying people are languishing away is just not true.”

National data suggests otherwise. About two-thirds of the jail population consists of people awaiting trial—more than 450,000 people. And five out of six of those individuals are there either because they couldn’t afford bail or because a bail agent declined to post a bond.

Bail agents run a business with a singular focus: to ensure that a defendant returns to court. If a person is arrested for a new offense while out on a bail bond, the bail agent does not have to pay the court. Advocates for reform say this means there is no incentive for bail agents to help people stay on track while awaiting trial. E. Thom Rumberger, a representative of Accredited Surety and Casualty Co., Inc., put it this way to Congress in 1998: “We write bonds for appearance. We do not write bonds for performance.”

A bail bond office in Hinds County, Mississippi where Byram, the court that uses post-conviction bonds is.

A bail bond office in Hinds County, Mississippi where Byram, the court that uses post-conviction bonds is.

Scandals involving commercial bail—such as bondsmen extorting sexual favors in exchange for their services—have earned the system a reputation for being vulnerable to corruption. These concerns have been around since the early 1900s, and have led to the abolition of commercial bail in Illinois, Kentucky, Oregon, Wisconsin, and Washington, D.C. There is no reliable research indicating whether abolishing commercial bail has affected jail populations. The most recent data compiled by the Bureau of Justice Statistics, from 2006, shows that the incarceration rates in the jails of Illinois, Kentucky, and Oregon are somewhat lower than in neighboring states; Wisconsin’s rate is higher than its neighbors’.

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Challenges to this centuries-old system have gained momentum again in recent years, and this time, the industry has responded with the campaign to expand into new markets. The successful implementation of post-conviction bonds in Mississippi courts is just one frontier in a growing effort on the part of the bail industry to find new business opportunities in a political climate increasingly concerned about mass incarceration.

“There’s a sense in the bail industry of a dwindling marketplace,” says Tim Murray, director emeritus of the Pretrial Justice Institute, which advocates bail reform. “And they are tenacious in their fight for survival.”

Another bail industry product under consideration is a bond that secures early release from prison. An inmate seeking parole could be required to purchase a bond, and the risk of forfeiting the money would be a strong incentive to obey the conditions of parole.

Steven Pickett, chairman of the Mississippi Parole Board, said this could be a solution to the state’s exploding prison population. Pickett expects legislation allowing these types of bail bonds to be introduced during this session.

ALEC has pushed legislation for these early-release bonds with claims that such programs “would rely on the proven success of the private bail bond industry, rather than the proven dysfunction of the government-run parole and probation system.”

There’s also a push to use bail bonds as a way to keep nonviolent drug offenders out of jail and ensure that they attend treatment programs. The glut of low-level drug offenders clogging jails and prisons has increasingly attracted the attention of politicians and the public, and commercial bail proponents often describe their new products using the same language as reformers. “Minimal drug use should not be criminalized, because it leads to bigger addiction problems,” Nicholas Wachinski told his Dallas audience.

Rather than incarcerate someone with a drug- or alcohol-related offense, he explained, the offender could pay a bail agent, who would in turn be charged with assuring that a person goes to drug counseling meetings. According to Wachinski, California judges have already expressed interest. “Get these treatment bonds introduced in your states,” he urged the legislators. In other words, the bail industry not only wants to be your jailor, it wants to be your parole officer.

ALEC has proved an effective legislative vehicle for the bail industry. According to documents leaked in 2011, roughly 1,000 bills based on ALEC language are introduced in state legislatures in a typical year, and about 20 percent of them are enacted. Bail industry leaders hold top positions within ALEC, and in 2010, the industry referred to the council as its “life preserver.” Forms of the post-conviction bail law that passed in Mississippi have been introduced in at least fourteen other states, in some cases with the help of ALEC-backed legislators.

Toward the end of the summer’s ALEC conference, the time arrived for the main event: the approval of the year’s new slate of model legislation. One resolution urged close supervision of offenders released from prison, “which typically includes such practices as regular reporting, electronic monitoring, drug testing, treatment referral if needed, and job placement.”

Before the members cast their votes, Wachinski requested an amendment: “Whenever possible, public-private partnerships should be engaged” to facilitate that supervision.

The bill passed unanimously.