“Bail Fail”

Justice Policy Institute’s Three September Reports on Bail – 
Discussing the injustices created and exacerbated by the U.S. bail system, with recommendations on alternative systems.

Check out the HAWAI‘I section in “For Better Or For Profit.”

BAIL FAIL: Why the U.S. Should End the Practice of Using Money for Bail
Full Report  •  Executive Summary •  Press Release
Excerpts from the Executive Summary:
“The vaguely understood pretrial process of bail costs the taxpayers of the United States billions of dollars and infringes on the liberty and rights of millions of Americans each year. Fortunately, there are alternatives that states and localities can pursue that have been shown to effectively promote safety, deliver justice, and reduce the number of people in jails. The use of money bail is among the primary drivers of growth in our jail populations…

“The ability to pay money bail is neither an indicator of a person’s guilt nor an indicator of risk in release…

“Pretrial detention has a documented negative impact on pretrial and case outcomes. Those held pretrial are more likely to be convicted of a felony, receive a sentence of incarceration, and be sentenced longer than those released pretrial…

“People in pretrial detention may lose their job…lose their housing…lose their health insurance…[and their] families are often adversely impacted…

“Due to disparities in the pretrial process, African American and Latino populations are more impacted by the use of money bail…Awareness of how this may happen at the bail stage is crucial for reducing disparities due to pretrial decisions, particularly as there is little oversight of decision making processes at this phase. The U.S. Supreme Court has affirmed the pretrial process as “perhaps the most critical period of the proceedings”…

“An inability to pay the money bail may coerce people to plead guilty so that they can get out of jail sooner despite being innocent…A 2012 study suggested that in an effort to avoid the ominous maximum penalties of a potential conviction in an inherently coercive and unfamiliar system, more than 50 percent of innocent defendants pled guilty to get a lower sentence rather than risk a conviction, albeit faulty, that would lead to maximum penalty. This means that in 2006, over 16,875 people could have been wrongly convicted.

“Recommendations

  1. Eliminate money bail
  2. Ban for-profit bail bonding companies
  3. Include the voices of all involved parties to ensure that reforms to the pretrial process are meaningful and effective.
  4. Expand community education programs, such as Neighborhood Defendant Rights programs, that inform people in the community about how to navigate the pretrial process.
  5. Use citations and summons to reduce the number of people being arrested and processed through jails.
  6. Use standardized, validated risk assessments to determine who to release and how to release.
  7. Implement measures of pretrial detention and release services to evaluate current programming and better inform pretrial reform efforts.
  8. [Should for-profit bail bonding companies be allowed to continue] Require for-profit bail bonding businesses to report on pretrial measures that better track forfeiture rates, FTA rates, and other pretrial performances and outcomes indicators.
  9. Expand pretrial service agencies
  10. Use court notifications.
  11. Research the effectiveness of current and proposed pretrial practice to ensure the activities will lead to desired outcomes.
  12. Amend the Bail Reform Act and policies to comply with the Equal Protection Clause.
  13. Better utilize technology to improve pretrial processes.”

FOR BETTER OR FOR PROFIT: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice 
Full Report  •  Executive Summary  •  Press Release
Excerpts from Press Release:
“As early as 1912 – one hundred years ago – critics were concerned that poor people remained in jail while awaiting trial solely because of their inability to pay even small bail amounts, that bail bondsmen had become too prominent in the administration of justice and that corruption plagued the industry. Amazingly, these issues still apply to the for-profit bail bond system in today, the Justice Policy Institute shows in its new report, For Better or For Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pre-Trial Justice.

“There are approximately 15,000 bail bond agents working in the United States, writing bonds for about $14 billion annually. Bail bond companies take billions from low-income people, with no return on investment in terms of public safety and added costs to communities, according to JPI’s findings. Backed by multibillion dollar insurance giants, the for-profit bail bonding industry maintains its hold in the pretrial system through political influence.

“‘For-profit bail bonding harms individuals, families and the integrity of our pretrial justice system,’ said Spike Bradford author of For Better or For Profit and senior research associate for JPI. ‘The industry’s political influence also perpetuates the use of money bail instead of other alternatives that allow people deemed low risk of re-offending or failing to appear in court to remain free until their trial. The practice of for-profit bail bonding should be eliminated.’

“While most places in the U.S. still use money as a primary release mechanism, and allow for-profit companies to post bond for people, some states and communities are moving away from money bail and bail bonding towards the use of Pretrial Service (PTS) agencies and risk assessments.“Bail bondsmen shouldn’t be mistaken for criminal justice professionals,” said Tracy Velázquez, JPI Executive Director.”

Hawai‘i Section Excerpt (p. 35-38 of Full Report):
“When Reality TV and Real Life Mix: The 2012 Hawai’i Reform Bill
An example of the strength of the for-profit bail industry’s fight against reasonable and cost-effective pretrial reforms occurred in Hawai’i during the 2011-2012 legislative session. The Justice Reinvestment Initiative (JRI), a data-driven reform effort now being rolled out in 17 states, aims to reduce jail and prison populations while increasing public safety and accountability. In Hawai’i, this resulted in draft legislation (HB2514) to expedite the return of people held in other states to the islands and strengthen parole guidelines and supervision. It also requires “a pretrial risk assessment within three working days of commitment to a community correctional center.” (fn 53) It was the timeframe of the risk assessment that drew the attention and lobbying efforts of the for-profit bail industry, specifically reality television star, Duane “Dog” Chapman, aka “Dog the Bounty Hunter.”

“Dog” and his wife, Beth Chapman (who was recently elected as Senior Vice President of the American Bail Coalition) submitted written testimony and lobbied the halls of the Hawai’i State Building in opposition of the JRI bill. In addition, both Chapmans made numerous statements designed to scare the public. In an interview, Dog stated that if a personal recognizance (PR) system were introduced (that is, clearer paths to pretrial release without money bail), “Hawai’i will not remain the safest place in America to live for children ever again.” He also told Hawai’i Public Radio, “you put this PR system, I’m gone. I’m not gonna live here when you allow murderers, killers, drug dealers, armed robbers out for free.” (fn 54)

Hawai’i Senator Will Espero, a supporter of the JRI bill, found it counter-intuitive that the Chapmans and the for-profit bail industry would oppose the legislation for its perceived result of releasing people pretrial too quickly. He asserted that “through
their bail company, they put [accused people] on the street, so for them to criticize this bill is wrong and ironic.” Upon further questioning, the Chapmans acknowledged that the bill “would negatively impact their business.” (fn 55)

As in other areas where the industry has worked to derail pretrial reform legislation, opposition to the Hawai’i bill came only from bail bondsmen and
the local prosecutor (see table). In this instance, the concerns of the Hawai’i Department of the Prosecuting Attorney centered mostly on the mechanics of implementing pretrial changes (fn 57) and not with the seemingly apocalyptic outcomes portrayed by Dog.

The JRI-related bills passed House and Senate votes in Hawai’i, with the support of groups like MADD and the ACLU, but pretrial reform efforts in other states have succumbed to the fear-mongering and moneyed influence of the bail industry.”

53 Hawai’i State Legislature, “HB2514 HD3 SD1, April 2012

54 Hawaii Public Radio, “’Dog’ Chapman Testifies at Legislature,” March 2012

55 Honolulu Civil Beat, “Dog the Bounty Hunter, Wife Lobby Against Hawaii Justice Reform Initiative,” April 2012

BAILING ON BALTIMORE: Voices from the Front Lines of the Justice System
Full Report  •  Press Release
“In Bailing on Baltimore: Voices from the Front Lines of the Justice System, Baltimoreans explain how money bail discriminates against low-income communities, with serious consequences for them and their families, and how for-profit bail bonding undermines the judicial system.”

Excerpts from Full Report:
“Recommendations:
The individuals who participated in this project drew from their experiences and expertise as advocates, attorneys, judicial officials, pretrial services providers, and residents of Baltimore City to provide specific recommendations to improve the bail system in Baltimore City.

“From their recommendations, three themes emerged: using evidence-based risk assessments, releasing more individuals on their own recognizance, and providing legal counsel to every person at their first bail hearing…

In short, what I believe is this:

  • If a person is not a public safety risk and not a flight risk, don’t use bail as a condition of release.
  • If a person is not a public safety risk but a flight risk, consider alternatives to bail for the poor as well as bail options that return all the posted money.
  • If a person is a public safety risk, consider no bail at all. If that is too draconian in light of the crime committed/criminal history, consider pre-trial detention alternatives to jail.
    –Page Croyder, former Baltimore City Prosecutor”
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