Thursday, May 17, 2012

Is the Sky Really Falling? Pretrial’s Urban Myth

For years, the
pretrial services community has run through the streets screaming “the sky is falling!”  While this is more of a figurative comment, the real message they have been screaming to anyone that will listen is that jails are overcrowded.  What most people need to realize is that they are playing a game of purposefully instilling fear and panic into consumers, legislators, community leaders and key influencers.  Can you hear them now, “Jails are overcrowded!  Jails are overcrowded!”  Oh yeah, and by the way, it is the commercial bail industry’s fault.  Insert more fear and panic here. 

So what is the truth?  Is the sky really falling?  Are jails really overcrowded?  Are bail agents really evil money grubbing gatekeepers that are road blocking and bankrupting the system because they just want to make more and more money?  Are people really languishing away in jail because they can’t afford a bail bond?  The answer in my opinion is an emphatic and absolute NO!  Let’s set the record straight with some facts.  You know, those things that the pretrial services community seems to ignore and leave out of their propaganda….I mean research studies.

Are jails overcrowded?  This is an important question and one that was recently answered by the US Department of Justice, Bureau of Justice Statistics in an April 2012 report.  The report looked at jail populations in county and city jails from June 2010 to June 2011.  And guess what?  Jail populations have actually declined.  In fact, the 2011 jail incarceration rate is the lowest rate since 2002.  One more thing…this is actually the third year in a row (since 2008) that jail populations have declined.   So to answer the first question on a national scale…it looks like the sky will stay up for a few more days.

Assuming that this study never existed…and trust me, the pretrial folks will try and make it seem that way…let’s take a look at the second question, is commercial bail responsible for the overcrowding?  In order to answer this question, you need to look at the role that bail plays in the system.  When bail is set by a judge, bail agents quickly and efficiently assess the risk of each potential defendant that comes to them.  If they decide to take on the risk, they indemnify it through a contract that financially binds the defendant, the family or indemnitor, the bail agent and the court and holds the defendant accountable for appearing in court.  The individual is then released to prepare for their defense and support their family, all the while checking in with the bail agent to ensure they appear for all scheduled court dates.  So far it sounds to me like bail actually lowers populations and does so in a responsible and effective way.

But can people afford a bail bond?  Absolutely.  The bail industry has had to evolve and catch up to other types of professional service industries when it comes to operating in a more credit focused economy.  The entire industry as a whole has become more adept at accepting credit cards, financing transactions, and working closely with families to underwrite risk and ensure release.  So to say that the majority of people can’t afford bail is another pretrial community myth.  It is easier now to secure a bail bond than it has ever been before.

Lastly, I want to address an issue that people will probably point out once they read this blog, and that is California.  While jail overcrowding has dropped on a national scale, it is has been a hot political topic recently in California.  Once again, the battle cry of the pretrial folks has been that 70-80% of the jail populations are comprised of “pretrial” defendants who are there for one and only one reason…because they can’t afford a bail bond.  While California does have the highest bail schedules in the country and it would serve the community well to reassess and lower those schedules, the concept of overcrowding being the fault of people not affording bail is just flat out wrong.  At no point do the powers that be ever explain the make-up of those pretrial populations.  If they were to do that, than one could easily see that commercial bail is not the cause.  Pretrial jail populations are comprised of many different types of people.  You have individuals who are there awaiting transfer to another county jail.  You have individuals who are awaiting transfer to state prison.  You have individuals who are there serving out a sentence.  You have people who have been denied bail because they are a threat to the community. You have individuals who are there on probation violations…by the way, all the types of people I have mentioned so far are not eligible for pretrial release.  Finally, also amongst all those people, you do have the group that is eligible for bail.  As you can see, that group is a small sliver of the pretrial population.

So is the sky falling?  Is commercial bail the cause of jail overcrowding?  Is jail overcrowding truly a national issue?  Or are we being spun a web of propaganda, myths and untruths?  You be the judge.