Wednesday, August 27, 2014

Justice Should be Measured in Efficacy as Opposed to Dollars...Especially When the Cost is Public Safety

Lately it seems like there have been a lot of stories out in the media about the cost of a bail bond.  The majority of these articles have taken the stance that the challenges in our criminal justice system are caused by the bail bond industry.  There are two main arguments that have surfaced as part of this debate, and as I will show you, both are flawed.

Argument number one is that the bail bond industry causes jail overcrowding.  It is the most common and probably most untrue talking point of those who oppose the commercial bail industry.  For years advocates of public sector pretrial release have used this argument to put a target on the commercial bail industry in the hopes of swaying public opinion and legislative support towards their own agenda.  They say people are languishing away in jail because they can’t afford a bail bond.  This statement couldn’t be farther away from the truth.  Here are the facts.  Jail overcrowding is not a problem stemming from the actions of the commercial bail industry.  It is a problem that is created through process inefficiencies within the court system.  Process inefficiencies that I believe could be solved but that is the topic of another blog.  If jail overcrowding was caused by people being unable to afford a bail bond than it would only make sense that in jurisdictions where there is no commercial bail, jail overcrowding wouldn’t exist.  Well I can confidently say that this premise is FALSE.  Just in the past 12 months, there has been numerous jail overcrowding stories out of states like Oregon, Wisconsin, Kentucky and Illinois.  All states that do not allow commercial bail.

The jail overcrowding argument also falls short when you look deeper into the make-up of the populations that are in the jail.  For example, back in 2012 the ACLU funded a study with the JFA Institute in Los Angeles County to determine why the jails were overcrowded.  The premise of the study was that 70% of people occupying the LA County jail were there in pretrial status and there because they couldn’t afford a bail bond.  Once the study broke down and identified who the individuals were that made up the jail population it became very clear that was not the case.  It was discovered that a large portion of the 70% were not there because they couldn’t afford bail, but rather because they were simply “not bailable.”   These defendants were being held in “pretrial status” but for a number of reasons including probation violations, immigration holds, too violent to be released, awaiting transfer to another jail, awaiting sentencing, etc.) and were not eligible for bail.  In fact, the 70% drops down to about 12% who are eligible to be released, and the majority of those people get out using a commercial bail bond.  So at this point, I think it is safe to assume that argument number one has been addressed.  Commercial bail does not cause jail overcrowding.

The second argument is almost the complete opposite of argument one (which is interesting because both arguments get used against the commercial bail industry simultaneously even though they contradict each other).  Many in the public sector pretrial community argue that bail bondsmen are releasing defendants for $0 or for very little money down and putting defendants on payment plans.  Unlike argument number one, there is nothing false about this statement.  Yes, the bail industry has evolved much like every other consumer business in this country.  Just as retailers like Best Buy offer big screen televisions on payment plans, when the economy got tough, the bail industry evolved to help consumers better afford their product by offering payment plans too.  Critics of the bail bond industry use this argument to say that the bail industry is undermining the criminal justice system by letting people out of jail for less than the judge intended them to have to pay.  While this argument might seem plausible on the surface, it is fundamentally flawed on many levels.  First, if we go back to argument number one, how can jails be overcrowded if bail agents are letting people go for $0.  In fact, while some bail agents do take payment plans, the face amount of the bond remains the same and is forfeited if the defendant misses court, as discussed below.  Second, the alternative options to commercial bail are public sector pretrial services or own recognizance release. These are both pretrial release options that let the defendant out of jail with $0 money.  That being said, even with $0 down, the commercial bail industry provides a higher level of oversight, accountability and management than any of these other forms of release.  And this fact has been proven time and time again over many decades by countless government, private and educational research studies.  All which show that commercial bail is the most effective form of release.

While the previous paragraphs are important to clarify and identify the faults of argument number two, and for purposes of this blog post even identify the faults of argument number one, there is an apparent lack of understanding of the concept of pretrial release overall and commercial bail.  This lack of understanding exists not only among those who oppose the industry, but by those who make decisions about our criminal justice system and our public safety.  The concept of bail has never been and should never be focused on what someone has to pay to be released.  While this statement may be shocking to some, any argument around the cost of a bail bond should be considered irrelevant.  The goal of pretrial release is about one thing and one thing only…ensuring that the defendant shows up for court.  The decision about the monetary value assigned to a bail by a judge is not assigned based on how much a defendant has to pay to get out, but rather how much a defendant or indemnitor (an contractually obligated third party) has to pay if they don’t show up for court. For some reason, the concept of bail and pretrial release has been shifted to the upfront cost of the product as opposed to the effectiveness of achieving the product’s purpose… which once again is getting defendants to show up for court.   What makes financially secured release so effective at assuring appearance is the way that it ties a third party to the release contract between the court and the defendant. This third party has a financial obligation (and incentive) to make sure that the defendant shows up for court. That financial obligation centers on the full amount of the bond.  It has nothing to do with what that third party paid for the insurance product (which is ultimately what a bail bond is) but rather what they will pay if the defendant defaults on the insurance policy…or doesn’t show up for court.

If we as a society are going to truly reform our criminal justice system, we need to look beyond ideology and focus on the facts.  When we talk about evidenced based pretrial practices, we must talk about all forms of release both unsecured and secured.  We must emphasize the things that truly make a difference like efficacy and what works best.  We need to understand and come to agreement on what method of pretrial release achieves the ultimate goal of what we want our criminal justice system to represent….things like order, accountability, fairness, compassion, and so much more.  All of these things can all be achieved if we first focus on what works.  The true cost of justice is not what you have to pay for it, but rather, the ultimate cost of what you lose when it comes to public safety.  Once we can all come together on these things, we can then begin to have meaningful and productive conversations not about bail reform but about criminal justice reform.   I look forward to hearing your comments.


  1. Great article Brian. Don't forget the large number of pretrial inmates there because the family refuses to enable a defendant any longer. We've all made that bond call to 5-6 different friends or family members and heard them all say "We told him last time that was it! Let him know we love him and will come visit!" Some people have burned too many bridges, "Grandma isn't going to post that bond this time since Janie stole her checks and forged them for $3300." This is a risk management business. If the family won't pay to take the risk, why should the public?

  2. Thanks for the clarifications, Brian! Regardless of the area of specialty, there will always be misconceptions and allegations. What’s important is how you explain the truth to the public in a way that’s easy to understand. Pretrial release is an assurance that the defendant will show at the court when hearings are scheduled. Moreover, it’s a way to show fairness to the accused, since they can’t be jailed without the due process of law. I do hope you’d be able to share more of these comprehensive articles for the sake of those who are confused with the terminologies of criminal law and bail bonds.

    Miranda Adams @ HMK Lawyers

  3. I have a friend that has been into jail. He had to find the right lawyer to work with him. He was lucky and was able to be bailed out shortly after he was in jail. I am grateful that he was able to come home shortly after he was in prison.

  4. Great information concerning the judicial system and the bail bond system. I agree that the system needs restructuring! I also agree that commercial bail bond businesses should stick around.