Analysis Race

Will Advocates Finally Bring Down the Industry Turning a Profit off the Backs of Poor Families?

Rachel Anspach

"For us, the initial step is just regulation. There are a set of laws that the bail bond companies are supposed to be following, and they are not."

“They tell you one thing, and they end up doing something else with your money,” Myrna Jones said about bail bond companies. “You never end up getting nothing back, and you were told that you would get your money back.”

Jones’ son Harold was arrested in September 2015 on a charge she did not understand, with his bail set at $1,000. Jones, a 62-year-old Brooklyn resident who works for the New York Housing Authority, did not have $1,000. So she turned to a bail bondsperson, who charged her $300. The company told Jones that they would refund her money if her son showed up in court. Instead, after her son’s case was dismissed, she never saw that money again.

“$300 is a lot of money to just give to somebody. I had to borrow that money, to tell you the truth,” Jones said. “That could have gone to a lot of things. It could have helped me pay my rent. It could’ve went toward my light bill or my gas bill. I could have done a lot with that $300.”

Jones’ experience with the bail industry is standard, according to advocates. “It’s typical that you would not get your payment to the bail bondsman back,” Color of Change Senior Campaign Director Scott Roberts explained to Rewire. “That’s one of those things where if you’re wealthy enough to pay your bail through the courts in the states where you can actually do that, your money is refundable. Typically, [the other option], payments to bail bondspeople are not refundable, and they come with additional fees.”

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The money bail industry in the United States turns a profit of $2 billion annually on the backs of families like Jones’, who are forced to pay for the freedom of their loved ones. Although the face of the bail industry is often small family operations, nine multinational corporations underwrite the vast majority of the roughly $14 billion in bail bonds issued annually in the United States. These companies play the role of providing insurance to take on the financial risk of whether individuals will show up in court. They are the silent backers of most bail bondspeople. Through this industry, private companies decide who gets to leave jail and who stays in a cage.

Advocates have found that bail bondspeople often refuse to insure bail amounts of $1,000 or less, leaving individuals charged with the lowest level offenses unable to get out of jail as they await trial. Nonviolent misdemeanors are by far the most common crimes in the United States. For instance, in New York City misdemeanors make up 73 percent of arraignment charges and most bail is set under $2,000.

On any given day, around 450,000 individuals languish in jails across the country because they cannot pay bail, or cannot find a bondsman who will work with them. The bail system disproportionately preys on people of color and those in poverty.

“The reason we got involved [with the bail industry] is because we saw bail playing a part in really disastrous outcomes for Black folks, whether it be Sandra Bland or Kalief Browder,” explained Roberts. “We saw Black people being held in jail unnecessarily under bail, and part of what we found in our research is that for similar crimes, our folks are more likely to be given cash bail, and they’re more likely to have a higher amount to pay.”

The civil rights advocates Rewire interviewed explained that laws pertaining to the use of of bail bonds vary by state—in some states all bail bonds go through bondspeople rather than courts, leaving individuals with no choice besides engaging with these companies. In most other cases, people end up paying a bond company because they can’t afford to pay the full amount to the court, but can pay the 10 percent often required for a bail bond. Bond companies also lure in clients through installment plans, which can result in long-term payment plans with interest, regardless of the trial’s outcome. A recent report from Color of Change and the American Civil Liberties Union (ACLU) noted that in Maryland alone “the bail industry kept at least $75 million over five years just in premiums from people whose cases were resolved without a conviction in District Court.”

Color of Change found that these installment plans often function similarly to payday loans, where lenders take advantage of vulnerable individuals’ urgent need for cash to lure them into plans with extremely high interest and fees. In her investigation of money bail for The Nation, Bryce Covert found, “If a client refuses any of [their plan’s] terms or misses a payment, the bondsman can threaten to forfeit the bail, which could land the client back in jail. Even if they don’t go this route, bondsmen will often make harassing phone calls and eventually turn the sum owed over to debt collectors.”

“For an industry that we have entrusted with such a basic tenet of our justice system, we have applied very little oversight,” Roberts said. “I think the biggest challenge the industry presents is the massive amounts of resources it is willing to invest in protecting its bottom line. So for us it’s also about driving a wedge between the industry and elected officials.”

The bail bond industry has a longstanding relationship with the pro-privatization lobbying group American Legislative Exchange Council (ALEC), which has helped the industry draft and pass pro-bail laws across the country, as well as lobby to prevent reforms. The American Bail Coalition (ABC), which represents bail insurers, spent $1.2 million in political contributions to advance its agenda between 2012 and 2014. As Covert reported, judges rely on such contributions. “Those same judges set the bail amounts that their donors rely on to turn a profit,” she added.

Danny Engelberg, chief of trials for the Orleans Public Defenders, has been practicing in New Orleans for ten years and routinely sees bail bonds hurting his clients and negatively affecting case outcomes. “Rather than having their case judged on its merits or having a more thoughtful negotiation, [defendants are] often just pleading guilty to get out of jail because they or their families weren’t able to pay the money to get out of jail,” Engelberg explained.

Bail coerces guilty pleas: More than 90 percent of those held on bail plead guilty, as compared to just 40 percent of those released pretrial. Eighty-eight percent of individuals who were not held on bail have their cases dismissed or resolved without a criminal conviction, as compared to 38 percent of those who were held on bail. Because it drastically increases chances of developing a criminal record, bail bonds are connected to laws like “three strikes and you’re out,” through which individuals routinely receive lengthy sentences for relatively minor crimes.

“All of a sudden, they’re looking at years and sometimes decades in prison because they had previously taken felony charges that they may not have had to take if they weren’t being held on a bail bond that they couldn’t afford,” Engelberg explained. “So it’s very much intertwined with a story of mass incarceration, nationally and here in Louisiana.”

Efforts to root out the bail industry take a variety of forms at local, state, and national levels—from providing information to communities about how the system works, to lawsuits against local bail practices, to changing state and federal laws such as the Bail Reform Act, which permits courts to set bail based on whether a judge believes the person poses a threat to society.

Color of Change is leading a national campaign to combat for-profit bail, which it launched with the report released in partnership with the ACLU in May. The report represents the most comprehensive effort to date to amass information on the national bail industry, and Roberts believes it poses a real threat to business as usual.

Painting a picture of how seemingly local bail industries across the country are in fact owned by multinational corporations and exposing their abusive practices, the report provides critical information for criminal justice advocates aiming to combat the bail bond system.

In partnership with other organizations, Color of Change is working to advance bail reform at the local level to pressure prosecutors, city councils, attorneys general, mayors, and other decision-makers in cities such as St. Louis, Philadelphia, and New York. It is building tools to share information on campaign contributions and relationships between the industry and elected officials to be utilized by grassroots organizations, concerned communities, and elected officials.

Through informing the voters who are paying bail bonds of their representatives’ relationships with the industry, Color of Change hopes to build pressure to cut ties. The organization also hopes that if prosecutor incentives are changed through public demand for bail reform, it can become more politically advantageous to reduce reliance on cash bail rather than appear tough on crime.

VOCAL-NY and the Brooklyn Community Bail Fund (BCBF) are working to combat New York City’s opaque, unregulated bail industry. BCBF released a report on the local industry in June, and is also working to build public pressure at the city and state levels. City-level targets for reform include the city council and the Department of Consumer Affairs, while at the state level the organization seeks to pressure the governor, state legislators, comptroller, and the Department of Financial Services.

“For us, the initial step is just regulation. There are a set of laws that the bail bond companies are supposed to be following, and they are not,” explained Nick Malinowski, civil rights campaign director at VOCAL-NY. “At the bare minimum we need regulation of those laws so that people are not being robbed of their money illegally. Long term we are really looking at the elimination of the industry.”

A set of consumer protections are supposed to apply to bail bonds, including a law stating that bondspeople cannot legally charge more than 10 percent of the total amount on bail assignments up to $3,000, 8 percent of amounts between $3,000 and $10,000, and 6 percent of any amounts above $10,000. Yet the researchers found that bondspeople routinely lump in illegal fees and collateral, masked in bogus charges such as a $1,000 courier fee. This year a New York judge ruled that bail bondsman Ira Judelson’s practice of charging premiums to individuals who he did not actually post bail for was illegal. In his defense, Judelson said that this was a routine industry practice and something he had done 500 to 800 times.

Public defender’s offices also play a role in combating money bail. “Every public defender’s office has a responsibility to have really zealous and highly resourced advocacy for pretrial release, and to ask judges for our indigent clients not to hold them on conditions of having money,” Engelberg argued.

As part of this effort, many of his office’s clients and attorneys testified in a lawsuit against the Louisiana bail bond system, brought by Civil Rights Corps and the MacArthur Justice Center in June. The lawsuit alleges a conflict of interest on the part of New Orleans judges, who regularly assign bail bonds, with a portion of the profits amounting to $1 million annually going back into the court’s budget.

National bailouts organized by the Movement for Black Lives’ National Bail Out Coalition also play a key role in calling attention to the harms of the bail industry. “As we continue to do the bailouts and focus our efforts even more strategically, there’s an opportunity to really impact the industry in certain places,” said Roberts, whose organization is a member of the coalition. “If we’re able to bail out people at a more massive scale, or focus our energy in localities, we can significantly impact the industry’s ability to raise money.”

The bail industry comprises one of the least transparent and most immoral components of America’s mass incarceration system. Advocates across the country are building momentum, media coverage, and public support to root this industry out of the justice system.

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