New report criticizes bail industry's parasitic relation to justice system

The Justice Policy Institute has issued a new report (pdf) critiquing the bail bond industry titled "For Better or For Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice." Commercial bail has been outlawed in most of the world as well as four American states - the only other nation that relies on commercial bail bondsmen is the Philippines - and this report makes a good case why. Issuing $14 billion in bonds per year and "Backed by multibillion dollar insurance giants, the for-profit bail bonding industry maintains its hold in the pretrial system through political influence," according to the report.

"The bail industry argues that taxpayers pay for pretrial services,," noted JPI, "whereas bail bonding is 'free.'" But the group argues that, "This ignores a number of collateral costs, both to taxpayers and to communities." Those costs including higher incarceration expenses for county jails and the cost to defendants' families, an important factor which is seldom considered in public policy debates. "In the best case scenario, the person and their family have less to spend on food, clothing and other goods and services that they would have bought in the community." In the worst-case scenario, a family member who did not commit any crime may lose their house thanks to an irresponsible relative.

Further, unlike surety bonds which release defendants solely based on ability to pay, pretrial services perform both risk and needs assessments and may facilitate treatment for defendants with addiction problems which improve overall public safety outcomes. "By assessing drug dependency and getting people started on treatment pretrial, PTS can save taxpayers money and reduce victimization that results from offenses committed to get money for drugs. Additionally, pretrial drug treatment may influence the court’s trial decision favorably by demonstrating a person’s willingness to address underlying health problems and take accountability for their actions."

Not only that, when defendants abscond the the state frequently never sees the forfeiture money: "courts seldom actually make bondsmen pay if the person they’ve bonded fails to appear in court. Forfeiture rules are, with the help of the industry’s political power, written to give the bail agent nearly endless opportunities to avoid paying forfeitures and make the process labor intensive and complex for the courts." Indeed:

The process can be burdensome enough to actually discourage jurisdictions from pursuing forfeiture collection altogether leading to situations where millions are owed. Following are examples of just a few recent cases where a lack of forfeiture collection has been discovered:

• California — estimated $150 million owed
• New Jersey—more than $100 million owed
• Hawai’i — more than $9 million owed
• New York City — more than $2 million owed
• Harris County, Texas — $26 million owed
• Tarrant County, Texas — $73 million owed
• Dallas County, Texas — $35 million owed

Bondsmen in these areas and around the country are aware of loopholes and collection laxity and many have not paid a forfeiture in years, reducing their financial risk to zero. As noted earlier, even when they are subject to forfeiture, bail bondsmen pass this cost on to those who paid the initial bond, with additional costs added on.

One section of the report focuses on radical changes to the system of pretrial release in Harris County, where "From 1994 to 2004 the percent of people in Harris Co., TX on pretrial supervision required to post a bond increased from (less than) 3% to (greater than) 60%." The number of misdemeanants who were required to post bail increased an astonishing 30,100% over that period! (See prior Grits coverage of this phenomenon.)

To this day, misdemeanor defendants in Harris County are routinely locked up pending trial if they can't make bail. As Grits reported recently, "According to the Pretrial Services division's annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail [in 2011]. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn't make bail and remained in jail either until they pleaded out or their case was otherwise resolved."

Judges in Harris were criticized particularly for increasing use of surety bonds while simultaneously imposing bail conditions (including urinalysis, which has generated its own problems) that require monitoring of surety bail clients by the county Pretrial Services division. "Since the early 1990s," reported JPI, "the agency has also been asked by some judges, in both the District Courts and the County Courts, to provide supervision for some people released on surety bail with special conditions that must be monitored."

Another section of the report focuses on the political influence of the bail bond industry, documenting large campaign contributions from the industry to key elected officials. From 2002 to 2011, Texas saw the second largest amount of bail-bondsmen contributions to elected officials, topping $400,000. In particular, three Texas legislators - state Senators John Whimtire and Juan "Chuy" Hinojosa, along with state Rep. Allen Fletcher - between them received $102,766 over that period.

In 2011, the report noted, Sen. Whitmire filed legislation that would have eliminated "deposit bail" in Texas counties, which according to the bill analysis "is when a defendant pays only a small percentage of the face amount of a bond in exchange for his release" to the county instead of a commercial bail bondsman. "The purpose of this bill [was] to discontinue the use of deposit bonds in the state of Texas," said the bill analysis, though thankfully it failed in the House after passing out of the Senate. Also last year, Rep. Fletcher filed legislation which would "require a judge or magistrate in whose court a criminal action is pending to discharge a surety's liability on a bail bond" after five years," essentially letting the bail bondmen off the hook. That bill made it out of committee but never made it to a house floor vote.

Among jurisdictions which have outlawed commercial bail, Kentucky (of all places) is frequently cited as offering perhaps the best US model. Here's JPI's description of their system:

Kentucky established its PTS (pretrial services) system in 1976 when it made for-profit bail bonding illegal. PTS officers interview arrested persons except those who decline an interview or make bail immediately. Using their recently-validated risk assessment tool the officer then makes a pretrial release recommendation based on the person’s measured risk of failing to appear at trial or being rearrested before trial. As in Multnomah County (OR), there are a range of options available to court officials regarding pretrial release. They may choose ROR, supervised release or set a high bail to reduce the likelihood of release.

In 2011, the Kentucky legislature passed HB 463, a comprehensive criminal justice overhaul bill which mandated changes in the pretrial system, further codifying PTS practice into law. A recent evaluation of outcomes showed positive gains following the implementation of HB 463 policies. Although the state already enjoyed relatively high outcomes in trial appearance and arrest-free pretrial release, the changes improved these even more.

The state saw its Appearance rates rise from 89 percent to 90 percent, post-HB 463. Also, the percentage of those released pretrial who were rearrested before their trial date dropped from nine percent to eight percent in the same period. Kentucky is a prime example of how states can achieve, maintain and improve pretrial outcomes in a system that doesn’t allow for-profit bail bonding.

Notice Kentucky hasn't completely eschewed the use of cash bonds, but (as one of several tools in the toolbox) uses the sort of "deposit bond" method that Sen. Whitmire's bill last year would have made illegal here in Texas.

The JPI report (pdf)) should be required reading for judges and county commissioners, not to mention legislators on committees governing these matters. IMO it's past time for Texas to join Kentucky and most of the rest of the world in outlawing commercial bail, but give the political clout of the industry I don't anticipate that happening anytime soon. Certainly, though, even in the present political climate, it should be possible to bolster county pretrial services agencies and ratchet up efforts to collect forfeitures from surety bond companies when their clients abscond. The bail industry's parasitic relationship to the justice system - socializing risk and privatizing profit - offers little tangible benefit compared to the alternatives embraced by Kentucky, the federal system, and nearly everywhere else on the planet.