For Whom the Bail Tolls
According to the Prison Policy Initiative, there are 330,000 people in state or federal prisons nationwide for drug offenses Just ask recovering drug user Daniel Romero, 41, of East Los Angeles about the toll incarceration has taken on him and the cost to the rest of us. He has 25 felony convictions. “My 19 years in court and behind bars cost maybe $2 million,” he said. From his time spent in the revolving door, Romero knows bail and jail intimately. He also understands that both are profit centers for others determined to keep the present war on drugs penalty system working to their financial advantage.
The U.S. bail bonds industry (BBI) does $2 billion annually, according to the American Civil Liberties Union and Justice Policy Institute. That is real money, with chunks of it being made available to shape criminal law policy and electoral politics via campaign donations and lobbying. Tracking these political and commercial ties reveal what criminal justice rhetoric tries to conceal. The BBI, among other powerful forces such as prison guards and private prison companies, invests extensive resources in pro-mass incarceration legislation, especially for drug arrests that disproportionately harm nonwhite and poor communities.
The role of bail bonders is virtually invisible to the public. U.S. progressive “prison industrial complex (PIC)” rhetoric foregrounds private prison companies and prison guard unions as leaders in the incarceration business (with police unions and war-on-drug agencies in strong support roles). It’s time to shine a light on another growing arena of PIC profiteering: the bail bonds industry.
With their individual operations largely obscured behind contrasting popular images of mom and pop bail bonds storefronts or less-than-friendly outlaw bounty hunters, the BBI has grown into quite a political force over four decades. Currently, it is pushing conservative legislation by courting politicians via bipartisan campaign donation and lobbying efforts and through a role in the American Legislative Exchange Council (ALEC)—an influential right wing national group significantly funded by the Koch Brothers. ALEC creates “model legislation,” including, most famously, the controversial Stand Your Ground gun law and attacks on public employee unions.
One dramatic example of recent BBI activity is in “pretrial services.” These services mitigate jail and prison overcrowding through pretrial release based on factors beyond one’s ability to post money bail, such as a detainee’s offense record, drug history and employment status. The industry has targeted such no-bail-needed practices for hammer blows along with other modern reform practices which tend toward bail-free misdemeanor charges and treatment rather than jail. Many experts and the public at large regard these practices as more sensible and effective.
There is no specific pattern available to ideologically unify politicians cashing in their own supposed principles under bail industry pressures—except to say that prison reform is the new norm. In Repackaging Mass Incarceration, Professor James Kilgore describes an explosive social and cultural paradigm shift that could potentially cause real problems for the status quo. Citing grassroots campaigns (drug laws, solitary confinement) and new ideological framings of mass incarceration (the new Jim Crow/ slavery and segregation analogies), Kilgore argues: “People are latching onto the idea of mass incarceration as a systemic problem that can only be solved with a vast redirecting of resources into the communities that have been devastated by imprisonment. In other words, mass incarceration requires a total paradigm shift. The situation has the potential to explode. Politicians and business people don’t like explosions. When explosions appear a genuine possibility it is time to talk reform, time to re-package.”
Apparently, the BBI offers Democrats a key way to participate in the paradigm shift that repackages mass incarceration. Democratic politicians have taken quite a liking to BBI campaign donations. If you are stuck in the naïve paradigm that Democrats only offer a progressive alternative to the drug war’s brutal mass incarceration policies and Republicans’ well-worn “tough on crime and drugs” ideology, think again. California, Florida, and Texas are the top three BBI donor states and, in a historic moment that demands alternatives to drug war decimation of nonwhite communities, many Democrats line up alongside Republicans to collect.
Furthermore, in poor nonwhite districts that lack robust economic resources to support progressive change, we see growing BBI support for politicians. This keeps many politicians beholden to the BBI-favored status quo, and communities most affected by the drug war lose a real place at the prison alternatives table. In fact, amidst a social and economic crisis caused, in part, by drug war policies, Democrats merely offer confusing mixed messages when clearly articulated visions are needed. Their messages push watered-down reform-minded initiatives that actually continue status quo criminalizing, policing, arresting, detaining, and bailing for sometimes quite minor (drug/ parole) violations.
BBI money conveniently flows from arrested individuals’ pockets, as detained drug offenders and others often charged with minor crimes scramble to make bail by any means necessary—even at the expense of their own families’ security. Then, taxpayer dollars pay the bill for courts, jails, police and prisons. On that spending note, the Great Recession hammered local and state budgets and brought reform-minded attention to the so-called criminal justice system. But how much is really changing?
BBI Style Reform
California enjoys a liberal reputation, but when it comes to criminal justice issues, it is unclear why. (Remember, California leads the way in the devastating, now partially appealed, “three strikes” legislation.)
Consider that last November, Governor Jerry Brown, Jr., a Democrat, vetoed an important state Senate bill, SB 649, initiated by the Drug Policy Alliance and introduced by Senator Mark Leno (D-SF). The bill, which was adamantly opposed by BBI, as well as elements of the pro-three strikes “lock them up and throw away the key” nexus of guards and prison companies, would have allowed judges and prosecutors to reduce the criminal penalty for simple drug possession of small amounts from a felony to a drug “wobbler” (the choice of felony or misdemeanor charges, with prosecutorial discretion). It would also have given judges and prosecutors discretionary authority to send defendants to treatment centers, probation, or community service.
“This bill would allow possession of heroin or cocaine to be charged as a misdemeanor instead of a felony,” Brown declared misleadingly in a veto message consistent with a pro-prison stance that strengthens as an election year approaches. Brown is amassing a campaign treasury that dwarfs opponents.
Brown’s other stated reason for the veto was improper timing. Citing another bill making its way through the state legislature, Brown declared: “We are going to examine in detail California’s criminal justice system, including the current sentencing structure.” Critics charged that Brown simply caved to law enforcement interests and punted the issue to a process where such interests would crush competing visions of mass incarceration.
“The governor let down the people of California, the majority of whom support going even farther than this bill would have gone,” said Lynne Lyman, California state director for the Drug Policy Alliance. “The vast majority of voters agree with the experts—locking up drug users is stupid, unproductive, cruel and expensive.” Later, in a phone interview, she added: “Up to 10,000 more people will serve time in [Golden State] prisons this year.” (Daniela Dabel declined to comment on the bail amounts and bail fees these pretrial detainees face because of the governor’s veto.)
As Michelle Alexander’s bestselling book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012), reveals, nine out of ten arrested drug offenders are black and Latino, far outstripping their number in the general populace where, percentage-wise, studies show whites use drugs more than nonwhites. Further, felons do the time long after they do the crime; they face a lifelong fate of second-class citizenship. In many states, they are denied voting privileges. Depending on the state in which they reside, they are ineligible for government-funded food stamps, temporary cash assistance, housing, and student loans. Brown’s veto ensures that this year alone, 10,000 more people, disproportionately people of color, face some elements of this fate. SB 649 was specifically designed to mitigate this racist discrepancy.
In California, Brown is hardly alone in protecting the industry. Recently convicted (for voter fraud and perjury) and then-suspended State Senator Roderick Wright (D-Inglewood) earlier accepted $3,000 from the BBI and introduced pro-BBI legislation focusing on electronic monitoring. The bill would allow defendants arrested without a warrant on a bail-allowed felony offense to apply for release on bail, with the defendant agreeing to be placed in an electronic monitoring program. Although the bill reduced bail amounts in some cases by 75 percent (still allowing a sweet fee for bail bonders and increasing the number of people who could afford bail fees), a more progressive reform measure might press for no-bail for low-level defendants who accept monitoring. In a phone conversation, Maggie Kreins, president of the California Bail Agents Association (CBAA) and herself a bail bonds company owner, said the CBAA supports Wright’s bill and opposes bills that eliminate bail money altogether in favor of providing supervision with electronic monitoring.
Then There’s Florida And Texas
In 2010, Florida legislators introduced bills intended to undermine pretrial services by overloading service providers and law enforcement officials with paperwork requirements. As one example, pretrial services would have to provide more documentation about arrested individuals before they appear in court. (This kind of anti-pretrial services legislation is part of ALEC’s “Right to Know” criminal justice legislative agenda which masquerades as favoring an informed public but pushes private interests.) Ultimately, these bills were vetoed because they “…would have limited the number of people that could enter pretrial to the point that it would not be beneficial for counties, Sheriffs and the courts to continue their programs. Pretrial is a useful mechanism for local governments to control their jail population while providing constitutionally guaranteed rights to the accused.” During that same time, Florida Democrat Alex Sink, running against now Republican Governor Rick Scott in the gubernatorial election accepted more than $15,000 in BBI contributions. Since this occurred when pretrial legislation was underway, it’s reasonable to speculate that the donations were meant to keep Sink soft on BBI pretrial services policies in the event she was elected.
Then there’s Texas. While California enjoys a progressive image, even while its Democratic governor refuses sensible reforms, in the last year Texas Republican Governor Rick Perry has been promoting progressive drug treatment and easing laws for drug use offenders. Bonding agents are not pleased and are rallying allies on the legislative level.
Take state Senator John Whitmire, a Democrat who represents north Houston and parts of Harris County and chairs the Senate’s Criminal Justice Committee. The Professional Bondsmen of Texas, which has donated $338,917 to Texas politicians since 1997 independent of individual donations from bail company owners, gave Whitmire $5,006 in 2006, $13,000 in 2010, and $7,500 in 2012. All told, from 2009-2012, he received more than $35,000 from the BBI, according to the National Institute on Money in State Politics. If ever a Democrat was beholden to the BBI, it’s Whitmire.
Whitmire has responded to BBI generosity with industry friendly legislation. His SB 878 ends the practice of deposit bail for defendants. Deposit bail allows them to pay only a small percentage of the face amount of a bond in exchange for release. (Usually defendants pay 10 percent of the bond amount to secure their release, and Whitmire’s SB 878 would end that practice.) SB 878 “would amend the Code of Criminal Procedure to prohibit a court or a magistrate from authorizing a defendant to deposit cash less than the full amount of bail set by the court or magistrate, nor require money or other security as a condition of bond for release.”
According to John S. O’Brien, director, Legislative Budget Board, under SB 878: “No significant fiscal implication to the State is anticipated.” However, it is unclear how “no significant fiscal implication” would be the case when more pretrial detainees would languish in jail awaiting trial. After all, taxpayer revenue to support detainees unable to pony up “the full amount of bail” will not appear from a magician’s hat. But the BBI, which profits off increased bail revenues, isn’t worried about the other end of the fiscal equation. Whitmire declined to respond to our inquiry as to why he introduced SB 878. (Even Harris County District Attorney Kathy Braddock testified against SB 878 in April 2011.)
Another BBI ally, Dallas Democratic Senator Royce West, authored SB 975, which addresses BBI friendly requisites for setting bail bonds. West received $14,750 from bail bond interests between 2009-2012. The BBI also buys regulative immunity in Texas. The Houston Chronicle reports the Texas bail industry is widely unregulated and is deeply in debt to the government. When someone skips court after posting bail, the bonding company is supposed to pay and then collect the money from the bail jumper. However, there is little forfeiture payment enforcement: 500 bonding companies, some no longer in business, owe Harris County (Houston) more than $26 million in bond forfeitures, some of which are decades old.
Inside Bail Bonding
Off the public radar screen, the BBI is wielding influence via national and local trade associations like the American Bail Coalition (ABC). Along with ALEC as an ally, the ABC deploys money to politicians via the Committee for Economic Growth and Social Justice, a “super” political action committee, (PAC). What makes a PAC super? It can take donations and spend them with no limits on supporting election campaigns with advertising supposedly “independent” of a candidate’s official campaign.
In 2013, the ABC contributed $75,000 to the PAC, which accounted for more than 40 percent of CEGSJ’s donations, according to the Center for Responsive Politics. In local elections, where bail companies stand to gain, a fraction of ABC’s $75,000 can provide a margin for victory, especially when bolstered by direct donations from owners of individual bail companies.
Big global insurance companies, which insure the bonds and make money from them, also back BBI policies and work to protect their investments in punishment (and its corollary, bail) over treatment according to a 2012 Justice Policy Institute report.
The BBI is also organizing national advocacy networks, holding conferences, and participating in powerful legislative organizations, like ALEC, to advance industry interests. Some of these interests are fairly common, such as the BBI pushing for lower tax rates for their businesses in many states. Even so, its support for a punitive rather than rehabilitative approach toward drug use has grown more professional over the years: it has sharpened its public relations campaign, its drug war investments, and its bipartisan political connections.
Nicholas J. Wachinski is the executive director of ABC, which has two representatives on ALEC’s Private Enterprise Board. (ALEC, and its new offspring the American City County Exchange, which targets municipal governments, declined to comment for this article, but ABC was eager to discuss industry activities.)
In a phone interview, Wachinski summarized BBI priorities and obstacles: “Our largest push right now is to educate, educate, educate…. Most people misunderstand bail generally, they misunderstand the role of the bail bondsman, and they really misunderstand how effective a bail bondsman can be. The future of the industry lies in education and communication with decision-makers in trying to figure out the most appropriate way the industry can be responsive to the needs of the criminal justice system.”
Here Wachinski doesn’t mean that drug or light crime detainees should get bail-free pretrial services. By “appropriate ways” he means the industry’s push to get bail amounts set at levels people can afford so the industry makes money.
It won’t profit if high bail amounts keep too many people detained, or if treatment and services replace jail as the preferred policy. The key here is in the preparation of the bail schedule, he said. To this end, the dollar amount of bail must accurately reflect the income levels of a particular county. “That’s how you have to determine monetary bail,” said Wachinski.
Asked to explain why the BBI opposes non-bail alternatives for pretrial detainees, Wachinski said money bail boosts public safety by reducing “flight risk,” i.e., defendants failing to appear in court. For him, money bail ensures a safer public.
The BBI’s fight for a status quo in which commercial bail dominates detainees’ release options, also affects the prison overcrowding issue. As with Brown’s veto, the BBI opposes drug-sentencing reforms as a viable alternative to prison overcrowding.
California, for example, is under federal court order to reduce its prison population, which the state addressed to some degree (but not to the satisfaction of the courts) with AB 109, a bill Brown signed in 2011. The law transfers state prisoners to local jails where there is more likelihood of early release because of overcrowding and, crucially, a greater chance that local courts consider sending new detainees to treatment rather than keep them in crowded jails. More people sent to treatment means, of course, less money pretrial detainees spend on bail. This would result in less BBI profits overall.
In similar circumstances in Texas, Harris County bail bonds businesses report a downturn due in large part to personal recognizance releases (PRs, which require no cash security postings) granted to arrestees versus bail bonding. Widespread PR was instituted to address jail overcrowding based on the reality that forcing detainees to first obtain bail would dramatically slow the process and keep the jails overfilled. According to local broadcaster KHOU, “In 2009, a federal probe found the Harris County jail to be severely overcrowded…. According to figures obtained by KHOU, the number of PR bonds given to felony offenders has significantly increased in Harris County, climbing by nearly 90 percent over the last three years.”
ABC’s Wachinski notes candidly that such prison realignment, including California’s AB 109 transferring state prisoners to early release local jails, hurts the entire criminal justice economy, including the bail industry. “As a criminal justice stakeholder, we have felt the sting of AB 109,” he said in a phone interview.
Evolution Of The Industry
Although reform is under way in several states, most arrestees in the U.S still face money bail. In most cases, a bail schedule is to the criminal justice system what a menu is to restaurant diners. It simply attaches a monetary price to a criminal charge title or type. Most often there is no consideration of charges’ strengths or weaknesses, such as felony arrest or nonviolent drug possession. There is just a fixed price.
If the accused can raise the cash for bail, s/he can leave jail. Usually, poor and working people, by definition, lack extra income and need to rely on bail companies to post a bond which friends, family or property can secure. This approach harms poor arrestees who sometimes cannot even afford the $50 required as 10 percent of a $500 bond. (In most states the bonding fee is 10 percent to 15 percent non-refundable and bonding companies can tack on other charges and require collateral fees depending on circumstances.) In simple terms, more felony drug arrests mean higher BBI revenues.
Tim Murray, executive director of the Pretrial Justice Institute, pointed out in a phone interview that reform-minded Illinois, Kentucky, Oregon, and Wisconsin have eliminated commercial bail. Kentucky, for example, uses risk assessment and pretrial oversight services such as childcare, employment, and substance counseling to evaluate detainee rights to be free before trial. As it happens, the U.S. is one of only three countries (along with Liberia and the Philippines) with a commercial BBI.
As far back as the 1920s, bail bonds have been viewed as discriminatory. In the 1960s and 1970s, reformers tried to curtail commercial bail by advocating for better pretrial services. The drug war that kicked off in the 1970s eclipsed this reform spirit and diverted public sympathy away from better pretrial advocacy to a public safety war-on-crime paradigm. “Public safety” became and remains the ideological bedrock of the commercial BBI as well as of other segments of the prison-industrial complex.
Pretrial services, which were escalated in the mid 1960s as a Democratic President John F. Kennedy-era “social experiment” dedicated to overhauling the bail system, has always been the underdog in criminal justice practices. As pro drug war policies were adopted by the BBI and other prison-industrial complex players, creating jail/prison overcrowding, pretrial services became the sacrificial lamb of options for arrestees.
Bail itself dates back to medieval England and emerged from the Anglo-Saxon sureties (personal guarantor) practice. Sheriffs were originally responsible for individuals charged with crimes who awaited trial by a judge coming through on a “riding circuit.” Colonial America inherited this system and gave it an original stamp, as the system evolved from personal sureties by defendants to the controversial practice of commercial sureties As far back as 1927, there were arguments against commercial bail because there is no strong link between posting bail and guaranteeing court appearances. (Not to mention the other more obvious criticism, that it discriminates against poor and working-class people.)
Democratic U.S. Attorney General Robert F. Kennedy supported the first nationwide bail reform conference in 1964, co-sponsored by the Vera Institute. This resulted in the Bail Reform Act of 1966 which endorsed in federal courts a presumption in favor of release whereby the defendant receives the least restrictive provisions to ensure court appearance. This is known as being released on your “own recognizance” (OR) or your “personal recognizance” (PR).
While many states set out to reform bail laws according to this federal statute, critics were concerned about bail reform’s public safety implications. In 1968, the District of Columbia began the first statutory procedure to detain arrestees without bond in the event community safety is threatened. Public safety became the most influential bail debate factor, with the District of Columbia and other jurisdictions considering the threat of drugs in relation to crime. Within 15 years, many states had adopted amendments to their own bail laws permitting judges to consider community safety in bail determinations—a standard later upheld by the U.S. Supreme Court.
As various interpretations of bail reform began to circulate from the mid-1960s to the mid-1980s, pretrial services became more of a mechanism to ensure smooth processing of a defendant in the criminal justice system than a pathway to treatment over jail. Over time pretrial services were co-opted into the new public safety paradigm; controversial drug testing became a major mechanism to establish a pretrial defendant’s potential public safety threat.
BBI Opposes Current Reform Efforts
In California this year, state Senator Loni Hancock (D-OK) introduced SB 210 to reform pretrial detainee policy away from a bail-schedule (menu) model only. Noting that California leads the country with the highest pretrial detainee jail population, Hancock declared: “Between 65 percent and 70 percent of those in our crowded county jails are not serving sentences; they are awaiting trial.” The data below quantifies the overall number of California’s pretrial detainees by felony and misdemeanor charges.
The CBAA unsurprisingly opposes SB 210, claiming “it has no accountability,” according to CBAA president Kreins. To which Hancock replies: “This bill is discretionary, not mandatory. It does not mandate early release in any way, but creates a framework that courts and counties may use to consider whether to use an alternative. SB 210 would allow a county to designate a local agency to prepare a report about a defendant awaiting trial. As a requirement, this report must use a validated risk assessment to determine whether a defendant poses a threat to public safety, and will make future court appearances. However, a court would retain authority to make the decision about whether the defendant should be detained.” She adds: “Detaining each defendant costs $100 per day, while alternatives to detention cost as little as $2.50 per day.”
Also in California, and contrary to Governor Brown’s sense of appropriate timing, Los Angeles state Senator Holly Mitchell, a Democrat, has moved to change some of the existing drug laws. In March, Mitchell introduced SB 1010, which is supported by a dozen California criminal justice reform and civil rights organizations.
The bill seeks to rectify the “institutional racism” inherent in sentencing disparities between crack and powder cocaine. But it does not apply to anyone involved in selling, manufacturing or transporting cocaine—and it is certainly not seeking to decriminalize drug possession with pretrial services/drug rehabilitation efforts. Mitchell, who accepted $1,125 from the BBI, is playing the middle ground here.
Mitchell’s bill is opposed by the California Police Chiefs Association, the California Narcotics Officers Association, and, predictably, the bail bonds industry The bail continues to toll for anyone who views decarceration as a central aspect of any broad social justice agenda.
Michelle Renee Matisons, PhD can be reached at michrenee @gmail.com. Seth Sandronsky is a Sacramento journalist and member of the freelancers unit of the Pacific Media Workers Guild. Email [email protected]