Bail Reform – The Great Con of the Decade

Go to jail monopoly photo

With groups like the Arnold Foundation, The Marshall Project, The ACLU, and the Pretrial Justice Institute there seems to be a set theme, take over the bail industry. Many of these different groups have joined in the same ideology and mantra of “cash bail is bad” and “the bail system is against minorities and the poor” but they fail to tell the public the truth about their actual end game.

The bail reform movement is a direct attack on free market business in an attempt to create a closed monopoly on criminal bail. The lawsuits filed indicate that professional bail bondsman take advantage of the accused by charging money to have them released. What they fail to explain is that a professional bail bondsman only collects a portion of the full the bond amount and then secures the release of the defendant with their own money. In other words, if a bond is $10,000 a defendant only pays $1,000 and the bondsman is responsible for the remainder; if that defendant fails to go to court it is the bondsman’s responsibility to pay the court the full $10,000.

What about the Judges

When the various groups file lawsuits they are not attacking the Judges or court system with regards to bail, they are targeting the financial end of it. If the ACLU was truly interested in justice for defendants they would be going after the court system and their bail schedules. If it is the position of the bail reform groups that a defendant can’t afford to get out of jail due to bail then why would they not want to address the problem where it originates, the judges that set bond amounts?

The Release on Recognizance Bond

When a defendant is released on their own recognizance there is no accountability for that person. When a bail bond is issued and a bondsman agrees to post the bond, there is another layer of protection for the community. The bondsman is making the promise to the court that they will produce the defendant if they fail to appear. This is done with the funds and resources of the private business and does not require any taxpayer dollars. When a defendant is ROR’d there is no guarantee, except for the word of the accused that they will show up for court. If a defendant fails to appear in court while on an ROR bond it is paid for 100% by taxpayers for that person to be located and arrested.

Pretrial Services Groups

When a state decides to remove bail bondsman there is still a group that may oversee defendants. These groups are similar to private probation companies that are in operation to make money. Defendants must pay the pretrial services company in order to remain in compliance with any bond conditions such as drug/alcohol testing, ankle monitoring, and check-in’s. In many cases the defendant will pay more for pretrial services than they would for a bail bond with a professional bondsman its just accrued over time vs. an upfront payment.

When a pretrial services group identifies a problem with a defendant they will go to the court and file a motion to have the bond revoked. When a judge agrees the taxpayer dollars start again as pretrial services is not required to aid in the capture or re-arrest of any defendant.

Phaedra Ellis-Lamkins, founder of Promise, recently did an interview with Jason Calacanis of Startups. In the beginning of her interview she immediately identified her company’s goal to make money. Ellis-Lamkins stated “We want to save counties money and instead of someone being in jail, which might be anywhere from 70 to 500 dollars a night, you can pay us”. Ellis-Lamkins does not realize it but she just outlined how professional bail bonding has operated for decades.

The Bait and Switch

The legal entities that have filed lawsuits within the State and Federal Government challenging cash bail have all made arguments that the current system attacks the poor and minorities. They litigate that jail overcrowding is due to people not being able to afford bail and therefore remaining in jail. It is their argument that defendants should be simply released without the need to put up any cash at all. The part that they do not explain to the courts or taxpayers is the defendant will still be required to make payments to an entity determine by the courts. The payments often exceed what a bail bond would cost and if the defendant can’t pay they will be in violation of the bond and re-arrested.

Ultimately the new bail reform movement will harm defendants financially and could cost them their freedom if they are unable to pay.