There’s about 450,000 people awaiting trial in city and county jails across the United States. While arrested on suspicion of committing a crime. They are legally innocent and studies estimate the majority of them are incarcerated simply because they cannot afford bail. What cash bail did was create a two tier system of justice, one for the rich and one for everybody else. It’s unconstitutional to jail people just because they don’t have access to a sum of money. Many others have had to secure their release using bail bonds. Private industry does it better. Bail agents do it better. collectively handing over an estimated $2 billion per year to private companies in exchange for their freedom. Bail is an important constitutional right. And without it, what are we saying? We’re saying the government just gets to decide who they get to lockup period end of story and throw away the key. How did bail becomes so central to our criminal justice system? Why is it suddenly on the chopping block? And are the proposed solutions any better? To understand how we got here, we need to start with the fact that 40 percent of people in the United States cannot afford a four hundred dollar emergency cost. That cash bail, whether it’s five hundred dollars or one hundred dollars, may as well be a million or five million for most people coming in and out of the system. Bail has a disparate impact on people of color. It has a disparate impact on people from low income communities and on women and moms. The average bail is about $10,000 for a felony charge, while even cheaper bails for misdemeanors can routinely run $500 or a $1000. That makes paying bail impossible for many, leaving them to await trial in jail. Jail is primarily for others awaiting trial and those serving shorter sentences, while prison is usually for convicted criminals serving out longer terms. But even a small amount of time in jail can have serious consequences for someone who can’t pay bail. Controlling for all other factors, sitting in jail pre-trial is the single greatest predictor of a conviction. Basically, just being in jail before trial makes people more likely to plead guilty and serve longer sentences. There’s often no clarity about what their options are. They may not have a lawyer come and see them. So people plead guilty because jail is a terrifying, violent and dehumanizing place to be. There’s no other way to describe it. So when you’re in that circumstance and your family and your life and your job and your home are outside, if the only way to get back to safety is to plead guilty, you’ll plead guilty whether you did it or not if you know you’re going to have to sit in that jail cell for days or weeks or months or yes even years before your case actually comes to a close. And that wait time can be dangerous. As originally reported by The New York Times and confirmed to CNBC by his attorney, Tyrone Tomlin was beaten to the point of needing medical attention while he awaited trial at New York City’s notorious Rikers Island jail. The reason for his arrest holding a straw he was about to drink a soda with. Police said it could be used for heroin. But test results came back negative on this draw. Even if charges like this are dropped that time defendants spend stuck in jail can initiate a destructive chain of events in their lives. Outside of jail, your life is falling apart. You can lose your job. You can lose your kids. Your immigration status may be jeopardized. You can lose your house and get evicted. You can be thrown out of school. So there’s a whole collateral wave of damage that happens to you, to your family’s life and to your community. Bail bonds can offer a way out. A bail bond is a service you purchase for someone else to pay your bail if you can’t afford it yourself. That person is called a bondsman or bond agent. So the way to work is the defendant will get arrested and then they will call a friend or family and say, get me out of here. It’s often that family member who contacts the bond agent. Then the bond agent sets out a fee of about 10 to 15 percent of the total bail amount. So for a common $10,000 bail, the fee would be about $1,000 to $1,500. The family member can pay that upfront or set up a payment plan. The bond agent then writes the payment terms into a contract which the family member usually cosigns with the defendant. You want to have a strong cosigner because if the person’s not doing what they’re supposed to. The third party who’s financially liable along with the bail agent will lean on the defendant to make him do what they’re supposed to. We use something that’s called the circle of love and that would be mom, dad, sister, brother on uncle people that have a direct familial connection to the defendant. The accused has a lot more to fear from mom and dad and grandma than he does the Department of Probation. That cosigned contract almost always makes the defendant and the cosigner financially liable for the entire sum of the bail, and it often requires the posting of collateral like a house or a car. The contract also lays out the bond agent’s terms for the defendant’s release. They can require in-person check ins. They can require ankle monitors to be put on so they can monitor the whereabouts of somebody. Really, what you’re doing is you’re transferring custody from the sheriff to the bail agent. So the defendant gets out of incarceration, within 24 hours they come in, we take a picture of them, and then they physically check in once per week until the final disposition of the case. And as long as the defendant sticks to the terms of their agreement, they await their trial with their freedom. When they obtain liberty, they truly obtain liberty. They go back to their jobs, they go back to their lives. If they skip bail, oh, you know, then it’s on. You know, then we of course, we’re gonna hunt them down any which way that we can. We hunt the warrant it. I mean, that’s what we do. While America sleeps, that’s what the bail industry is doing. But critics say the industry places an undue financial burden on lower income defendants and their families. If you’re rich and post bail, you’ll get that money back after you show up to your trial. If you get a bail bond, you won’t get back the 10 to 15 percent fee you paid a bond agent to post your bail. Critics also say the bail bond process leaves defendants open to alleged extortion from bond agents. Bond agents may arrest their clients for not meeting the terms of their contracts, require drug tests, enforce curfews and even perform searches on clients homes or vehicles. They can also often revoke bail and send clients back to jail. These powers can give bond agents leverage to extract additional payments from clients. One example of this allegedly occurred in the New Orleans area, where Ronald Egana ran into trouble moments after his family secured his release from jail with Blair’s bail bonds. Once Ronald got out, he was told for the first time that he had to also wear an ankle monitor that was not court ordered it was a requirement of the bail bond company, and that that ankle monitor would cost $10 a day on top of the money that he owed on his premium. The Southern Poverty Law Center has since filed a lawsuit on Egana’s behalf, according to the suit. Again, his family couldn’t afford his $3000 bail bond fee and had to set up a payment plan. So it’s no surprise that he soon fell behind on the extra $300 per month ankle monitor charge. The bail bond companies bounty hunters showed up at his workplace armed, and they arrested him, took him to their office where they kept him in a back room handcuffed and made him call his mother and tell her that unless she brought $800 to them right away, he would be surrendered to the jail. According to the suit, over several hours she gathers the money and then goes to pick up her son. But then she brought it down to the bail bond company. And once she did that, they said, actually, we need you to pay another $1,500 dollars. So she leaves and she goes through that whole process again. She gets fifteen hundred dollars. She pays it to the bail bond company. And only then do they release him. And apparently this continued to happen. In one instance, the bounty hunters even allegedly intercepted Egana at the courthouse’s as metal detectors as he tried to report for trial, causing him to miss the court date. Blair’s bail bonds did not immediately respond to request for comment. But industry members condemn this sort of conduct. We’re against it. We think it’s wrong. If it does happen, we encourage people to report it to the departments and have them investigate and discipline people who do that. There are always going to be bad operators in every industry. But for the most part, that’s just not the interaction between bail agent, family member, the accused. That’s just not the way it works. The Southern Poverty Law Center says Egana’s case helped crack open a much larger pattern of abuse in the New Orleans bail bond industry. They filed a complaint with the Louisiana state authorities in 2017, alleging the bail industry took over $5 million in illegal fees from about $50,000 low income people In 2019, Louisiana state authorities ordered the bail companies to repay that money. However, due to a law change, it hasn’t been paid back. When we think of commercial bail bond agencies, we think of those sort of mom and pop shop small business owners who we see in a lot of communities. There are roughly 25,000, but they’re backed by only nine major insurance companies. So at the top of this sort of economic food chain, there are major companies who write the rules, who make it so that those bonding agents take all of the risk of loss. But it’s important to note big insurance companies don’t underwrite all bond agents. I actually am the CEO of our own family insurance company, although ours is not national like some of the national insurers that you’re referring to. They are indeed, my brethren. So the fact of the matter is. Yes, absolutely. They make money, but they also pay loss. Still, reports indicate the biggest bail bond insurers rarely take a loss even when bail money is forfeited, with multiple industry executives on the record saying they have gone years without losing any money. Say my bond is ten thousand dollars. The insurance companies, they have the bonding agents agreement to pay that ten thousand. And they have these special funds called build up funds that the bonding agent has been continually paying into to make sure that $10,000 never comes out of their own pocket. Another way insurance companies protect themselves from loss is these strict contracts bail agents use, which tend to pass on the burden of paying a surrendered bail to defendants and their co-signers. The insurance companies also provide form contracts that get used across the country, so their lawyers have worked up long contracts with all kinds of fine print. Although we think those contacts are largely unenforceable. But then why do people sign them? In general, at the point that the person who has been bailed out is actually sitting down to sign the documents and seeing them for the first time, their family members have probably already paid a very significant amount of money to the bail bondsman. And the bail bondsmen are at liberty to say, hey, if you don’t like the terms of this agreement, then you’re free to not sign and we’ll just surrender you back to jail and we’re not going to return the premium amount. So that moment is actually one in which there is quite a bit of coercion going on. A study from UCLA reviewing over 100 different California bail bond businesses contracts found a litany of clauses that researchers believed could not stand up against a challenge in court. I don’t agree with what UCLA has done on that analysis, legally. Certainly if they thought they had grounds, I think they’d be suing us right now. But the reality is, if you look at most commercial contracts, people don’t read them, they don’t understand them and they don’t care. And that goes for your cable, your power. All this sort of thing. You’re signing all these contracts. So I think that’s just a problem in general. Ours are really not any different than any other industry. Issues like this have helped spur a wider bail reform movement focused on short term measures to relieve those impacted by bail immediately and longer term ones to reformulate the larger bail system. For example, funds are sprouting up that pool charitable dollars to pay people’s bail. The Bail Project has done about 8,000 bailouts for people across the country. What we’re seeing is that the overwhelming majority of our clients come back for their court dates. There are much more positive outcomes for people. The ACLU is also working to challenge bond companies and the bail system in courthouses around the country. We have two cases in Alabama, two in Texas. We’ve filed cases in Mississippi, in Georgia that have concluded Florida, Pennsylvania, Michigan, New York. Then there’s policymakers trying to institute large scale bail reform. Washington, D.C. did it successfully decades ago, but has had trouble getting other jurisdictions on board. California got close when it passed a bill to get rid of bail in 2018. But major pushback from the bail industry in one of its largest markets, along with a bipartisan uproar over the use of risk assessment algorithms to determine whether defendants would be released before their trials halted its implementation. Those algorithms had already been tried in other jurisdictions with controversial results. Research is very clear that they do absolutely nothing to reduce racial disparities that we see. So you still see the same burden of the system being borne by black and brown and low income people. New Jersey passed bail reform in 2014, but has since struggled to find money to pay additional personnel required to keep track of defendants, something the bond industry once did there for many defendants at no cost to the state. New York seems to have the most popular support from the reformer movement at the moment. The state is working to implement new laws that drastically reduce the use of bail and avoid algorithms. But many bond agents there worry it will push up crime levels. This is a direct hit to the crime victims and a direct hit to the public safety not only of every citizen of the state of New York, but of every global visitor. As the country waits to see what happens in New York, a clear vision for bail reform remains elusive. But in the meantime, the issue has become a bellwether of the larger conversation about mass incarceration in the United States.