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.