The Unanswered Question of Bail Reform: Who Pays?

As a follow up to my last blog post, The Bail Bond Industry: A Scapegoat of Convenience, I wanted to focus this blog post on the question that no one ever seems to want to bring up in the “Bail Reform” discussion.  And that question is…Who pays? Whether it is the state of New Jersey wanting to expand its pretrial services agencies or Maryland’s recent efforts at Bail Reform, public sector pretrial release proponents never seem to be concerned about the real elephant in the room…the money and where will it come from.

The public sector pretrial community for years has touted the success of the Washington D.C. pretrial services agency.  It is the case study that they believe is the perfect pretrial model for success and the blueprint that all counties in the U.S should follow.  However, while they tout the amazing success of the program, there is one topic that they do not typically talk about…and that is the money…or as I like to say the most important question you can ask, WHO PAYS?  The DC pretrial program monitors 4400 defendants at a whopping cost of $59 million.  That is $13,409 per defendant that is spent to supervise defendants and ensure they show up for court (BTW, the commercial bail industry does the same thing at no cost to the taxpayer).  Additionally, when a defendant fails to appear, the DC pretrial office has the luxury of having the US Marshall Service at their disposal to go after fugitives.  BTW, just for the record the success rate of the DCPSA is 88%.  That means 12% of defendants never appear for court.  Now compare that to the commercial bail industry which has a 98% success rate.  It is really amazing to think that a 12% failure rate is considered a success in the public sector.  Just imagine if your airline only got to its destination 88% of the time, or your bank only got your account balance right 88% of the time…would that be acceptable.  And just for the record, the person that funds the Washington DC pretrial program…you, the US Taxpayer.

Now in order for you to fully understand the magnitude of the dollars we are talking about, let me put this in perspective.  If you were to apply the $13,409 per defendant to a typical metropolitan county in the US that doesn’t serve 4400 defendants, but rather 20,000 defendants a year that cost balloons to over $268,180,000 to provide ONE typical metropolitan county in the US a DC like pretrial services agency (FYI…there are over 3000 counties in the US).  And remember that this typical local county won’t have the resources of the US Marshal Service available to help it track down those defendants that fail to appear. They will instead have to rely on an already overburdened and under resourced local law enforcement agency.  What this does is create significant lapses in public safety.  Either police have to put aside regular duties to pursue a growing number of fugitive warrants, or they have to ignore the fugitive warrants and go about their regular law enforcement duties to protect the public.  Whatever they decide to do, public safety is impacted in a negative way.  And please don’t misunderstand my point.  It is not law enforcements fault. The fault lies with an ineffective public sector program that costs counties money they don’t have and requires resources that are already overburdened.  Additionally, these public sector programs do not have the proper incentives and levels of accountability to perform at the highest level possible as does the private sector (i.e. the commercial bail industry). Most importantly, let’s not forget that the commercial bail bond industry is not only the most effective form of pretrial release (proven time and time again by countless research studies and academic papers), but also costs the county $0.  And this is a talking point that never seems to come up in the discussion of “bail reform.”

In a time where local states and county governments are facing tougher and tougher fiscal challenges, the idea of replacing private sector commercial bail with public sector, taxpayer funded pretrial agencies and diversion programs is not only a poor public safety decision, but more importantly also a fiscally irresponsible one.

What the bail reform movement needs is less pie in the sky ideology, but rather more realistic, evidenced based SOLUTIONS to the problem.  Proposing bigger pretrial service programs with bigger budgets doesn’t solve jail overcrowding.  Convincing decision makers to get rid of a long standing, effective private sector business like the bail bond industry does not rehabilitate career criminals.  Letting more so called “non-violent” offenders out of jail with no supervision and no accountability does not increase public safety.  Instead all these types of ideological recommendations do is exacerbate the problems in the system and deflect decision makers from the real problems.   And please know that I feel the same way towards more commercial bail.  Bail is not the be-all end-all answer to the problems facing our criminal justice system.  I am convinced that the answer does not lie with one solution or the other.  Rather, I believe that the answer involves all aspects of the criminal justice system to work together.  The private sector doing what it does well and the public sector doing what it does well.  But to date, instead of trying to solve the real problems of the system, the public sector pretrial community through its “Bail Reform” movement is putting its efforts into creating market share instead of solutions.

It is time for counties around the country to start approaching the ills of the criminal justice system with a comprehensive approach that truly addresses the roots of the cause of the problems it is facing.  Additionally, our decision makers need to start turning to those in the private sector that have the knowledge and experience to help solve some of these challenges in smart, fiscally responsible ways.


The Bail Bond Industry: A Scapegoat of Convenience

A couple weeks ago I read an article out of New Jersey talking about the ills of the criminal justice system and the need for bail reform.  The article started with telling the story of a defendant who was released on a reduced bail amount and has since been rearrested for another violent crime.  The article then goes on to talk about the many ills of the criminal justice system all couched under the umbrella of the need for “Bail Reform.” The issues identified in the article were: Jails being overcrowded, inmates being warehoused instead of rehabilitated, bail bond agents writing bail with payment plans, and so on.  Not only did the article discuss these issues as a need for bail reform but also put the blame for them squarely on the commercial bail industry.  After reading the article a couple more times, I felt myself getting more agitated and confused.  I kept saying to myself what does this have to do with the bail industry?  What have we done to have so much hate and resentment thrown towards our industry by those in the public sector? Why are we being held responsible for the criminal justice system falling short? The only answer, the bail industry was being made a scapegoat of convenience.

In order to try and rationalize things a bit, I started to breakdown the potential issues one by one and see if this overzealous criticism and finger pointing was deserved or really as misguided as I thought.  First, I looked at jail overcrowding.  Are people locked up in jail, because they can’t afford a bail bond?  Well, if you read into the article a bit you can see that the author is actually says that people are getting out “too easy” with bail through payment plans.  But even without payment plans, the concept behind bail is to facilitate the release or make it more attainable for families who can’t afford the full amount of the bail.  By assuming part of the financial risk the bail agent not only makes it easier for families to get their loved ones home, but also guarantee to the court that the defendant will show up for ALL court appearances once they are out.   So to say that bail causes jail overcrowding couldn’t be further from the truth.  Also, media coverage has shown us that states like Kentucky, Illinois, Oregon and Wisconsin all have jail overcrowding issues.  The interesting point there is that none of those states have commercial bail.  So I think we can cross that off the list.

Next, I looked at the issue of warehousing versus rehabilitation.  I tried to figure out where commercial bail plays a role in keeping convicted felons warehoused in jails and prisons instead of rehabilitating them.  This one was actually pretty easy to figure out.  Bail has nothing to do with warehousing or rehabilitation.  Bail is about “appearance.”  When a judge makes the determination that a defendant is eligible for pretrial release and sets a bail amount, it becomes the bail agent’s responsibility to ensure that those defendants that they do release on bail show up for ALL of their court appearances.  That is it.  We guarantee “appearance.”  To say that the commercial bail industry has failed to do their job and has caused the current problems in the system is not only a red herring, but also grossly misleading and accusatory.  The concept of bail is and always has been about getting defendants to court so that they could be held accountable.  And in the history of our modern day criminal justice system, there has yet to be a better form of ensuring a defendant’s appearance than a financially secured bond obtained through a commercial bail agent.  Every legitimate study, every independent research report and countless academic articles written on the subject of “pretrial release effectiveness” undeniably support this claim.

So if the commercial bail industry is not the problem than what is?  And then it hit me.  That question is not only the fleeting one, but also the answer.  No one knows what the problem is.  Without trying to truly get a snap shot of the make-up of the pretrial populations and understand the wide range of reasons why people are there, you can’t come up with a real solution to the problem.  And you definitely cannot accurately identify what the problem is in the first place. Additionally, if this is the case and the problem is so clearly undefined as it appears to be, than why are states like New Jersey proposing “Bail Reform” in the first place?  Why are decision makers proposing to throw millions of dollars of taxpayer funds at a problem that they do not know the actual cause or the most effective solution? I think these are all very important questions and ones that need to be answered by those looking to reform the criminal justice system and abolish commercial bail.  (In fact, this topic would make a pretty interesting blog post…hint, hint).

If we want to truly solve the ills of the criminal justice system there needs to be full and transparent cooperation between the public and private sector pretrial community.  In other words, we have to stop creating scapegoats and pointing fingers at each other and instead start solving problems with each other.The commercial bail industry is NOT THE PROBLEM in the criminal justice system.  Anyone who thinks so is not trying to solve the problem, but rather trying to discredit a legitimate and effective industry for their own ideological agenda and gain. If all the stakeholders are able to come together (including the commercial bail industry), I am extremely confident that together we could not only solve some of these challenges, but also strike a deeper balance between the social justice and criminal justice sides of the equation that everyone desires.  In this way, we can ensure that all parties are contributing to the solution in the best way possible and that ultimately both victims and defendants are getting their day in court, justice is being served and accountability is being maintained for us all.  I look forward to reading your comments.