Bail Bond Companies Profit While Poorest Defendants Remain in Jail

By David M. Reutter and Mel Motel

As America’s prison population has swelled over the past three decades to become the largest per capita in the world, the number of special interests that feed off the prison industrial complex has grown. The expansion of companies that benefit from crime and incarceration is no accident; it is the result of extensive lobbying by businesses that profit from other people’s misfortune – primarily the misfortune of the poor, who are vastly overrepresented in our nation’s prisons and jails.

Often overlooked among the special interests that profit from the criminal justice system in the U.S. is an industry that portrays itself as one dedicated to helping people get out of jail. In actuality, though, it is involved in keeping people incarcerated in order to protect its bottom line.

Just 20 years ago in most jurisdictions nationwide, the services of bail bondsmen were only required by defendants who had a high bond set by the court, which typically occurred in cases involving serious crimes or repeat offenders. Most defendants were released through publicly-funded pretrial services that granted release on personal recognizance based on a promise to appear at future court dates.

Currently only Illinois, Kentucky, Oregon and Wisconsin prohibit commercial bail bondsmen. Other jurisdictions have laws that allow, and sometimes encourage, the use of bail bond companies. This expansion of the bonding industry has contributed to high jail populations.
The story of Raymond Howard, 34, illustrates the connection. Howard landed in jail in Lubbock County, Texas on a felony check forgery charge; because he had no history of violence and had always showed up for court, he needed only $500 to make bail. But his inability to post that small amount ended up costing taxpayers over $5,000 to keep him incarcerated as a pretrial detainee.

The cost, however, did not end there. Howard ended up with a three-year prison sentence. Defense attorneys said that had he been able to make bail he most likely would have received probation, as defendants who are free while awaiting trial are able to pay restitution and show they are making rehabilitative efforts.

“If I can get out and hire an attorney, I can go to rehab. I can get my job back. And when I get to court, my lawyer has something to work with,” said Lubbock County pretrial detainee Doug Currington, who was unable to post $150 bail for trying to steal a television. “The lawyer can say, ‘This guy has been clean. He’s voluntarily gone to rehab. He hasn’t committed another crime. He has the same job. He’s paying child support.’ They’re not going to want to throw you back in jail.”

Another example is Leslie Chew, who was homeless when he was arrested for trying to shoplift four blankets in December 2008 and was booked into the Lubbock County jail. Unable to post $3,500 bail or pay 10% of that amount to a bondsman, he remained incarcerated for eight months at taxpayer expense.

There are at least 500,000 people accused of crimes who stay in jail each year because they cannot afford to make bail. The bail bond industry vigorously fights to keep them there, in hopes they will eventually come up with the money to pay a bondsman. This epitomizes the socioeconomic disparity that underpins the U.S. criminal justice system: Defendants who can afford to pay a bonding company are released from jail, while poor defendants who cannot remain behind bars – sometimes for months or years while awaiting trial.

Rather than release defendants on their personal recognizance, despite statistics that indicate the vast majority show up for their court dates, jurisdictions such as Lubbock County have gutted their publicly-funded pretrial release programs. The remaining such programs are under attack by bondsmen.

The bail bond business is a cutthroat industry that leaves no room for pretrial release services. As Ken Herzog, the office manager of Lubbock Bail Bond, was working to make bail for a prisoner, he said a clerk advised him that pretrial release was trying to get the same prisoner out of jail.

“I said, ‘Oh no, they ain’t,’” Herzog told the clerk. “So, I went to the judge that signed the motion for pretrial and told her what was up. They had no business even talking to this person. They pulled their bond, and I got the person out of jail.” For a fee, of course.

Herzog told Steve Henderson, who runs Lubbock County’s parole and pretrial release program, to stay away from his paying clients. “If he gets in my business, I told him, ‘I do this for a living,’” Herzog said, referring to Henderson. “I said, ‘You don’t do that. We set this thing up.’ I said, ‘I’ll work with you any way I can, but you’re not going to get in my business.’ Well, he backed off.”

Lobbying by the bail bond industry has resulted in public officials moving away from pretrial release services in some jurisdictions. Florida’s Broward County is one example of such lobbying gone amok. For context, a judge had found in 2007 that overcrowding in the county’s jail system was unconstitutional.

Broward County was thus facing the prospect of spending $70 million to build a new jail. County commissioners, however, voted to double the budget of pretrial release services to let more prisoners out to reduce overcrowding. The program was an amazing success. Defendants were showing up for court, and within a year the sheriff closed an entire wing of the jail due to the decrease in population, saving taxpayers $20 million annually.

Broward County’s bail bondsmen then led a charge to cut the successful pretrial release program. “We’re tenacious; we do our job,” said bondsman Wayne Spath. “People should not just be released from jail and get a free ride. I mean, this is the way the system’s got to work.” And the way the system works can be very profitable for bail bond companies.

After all, for every detainee released through a pretrial release program, that’s one less potential fee available to bondsmen, who usually collect 10 percent of the full bond amount from their paying customers.

“The bondsmen think pretrial is stealing their business,” noted Broward County Judge John Hurley. “But I don’t want to get into the mix. I don’t want to get into the political aspect of all this.”

Bail bond companies in Broward County hired a lobbyist and distributed about $23,000 in donations among county commissioners in the year before the commission voted on an ordinance that gutted the pretrial release program by limiting defendants who were eligible for the program. The commissioners vigorously denied the contributions had influenced their votes.

Herzog put a nice spin on such political donations by bondsmen. “We take care of the ones who take care of us,” he said. “We don’t want to pay anybody off, per se. We just want to support the people who are trying to help our business.”

Now, thousands of people in Broward County sit in jail because they cannot afford to make bond. The county’s public defender, Howard Finkelstein, decried the lobbying by bondsmen that resulted in poor defendants languishing behind bars simply because they can’t afford to be paying customers for bail bond companies.

“Don’t tell me that you’re doing this for the good of the people,” Finkelstein said. “You’re doing it for your own good, that’s fine, but then you shouldn’t have a seat at the table when public policy is made.”

Bondsmen have pushed legislation in Iowa, North Carolina, Tennessee and Virginia to limit pretrial release services, increase reporting by pretrial release programs and encourage the use of commercial bail bonds. The legislation, known as the Citizen’s Right to Know Act, was backed by the American Legislative Exchange Council (ALEC), an influential organization that brings lawmakers and private-sector companies together to produce model legislation. [See, e.g.: PLN, Nov. 2010, p.1; Jan. 2002, p.1]. The Citizen’s Right to Know Act passed in Texas in 1995 and Florida in 2009.

“For those who believe in limited government and the supremacy of the free-market, these agencies [pretrial release programs] are frustrating as they replace a well-functioning private-sector model – commercial bail which operates at no cost to the taxpayer – with a less efficient government alternative,” an ALEC publication stated.

Not coincidentally, the American Bail Coalition (ABC), a member of ALEC since 1993, has helped push a dozen model bills though ALEC that benefit the bail bond industry, including the Uniform Bail Act. ABC president William Carmichael currently sits on ALEC’s Private Enterprise Board, while ABC executive director Dennis Bartlett served on ALEC’s Public Safety and Elections Taskforce before that taskforce was eliminated in April 2012.

ABC senior legal counsel Jerry Watson, who chaired ALEC’s Private Enterprise Board from 2006 to 2008, received ALEC’s Leadership Award. “There is no way to accurately evaluate the benefits thus far to our industry by our involvement in ALEC,” he stated.

A federal version of the Citizen’s Right to Know Act was introduced on May 12, 2011 (HB 1885); the legislation would require state and local pretrial release programs that receive federal funding to issue monthly reports to the U.S. Department of Justice. Such reports would include “a list of each charge filed against each individual accepted into a pretrial release program ... a list of all prior criminal convictions of each individual accepted into a pretrial release program ... a list of the court appearances required of each individual accepted into a pretrial release program ... [and] a list of each instance during the reporting period on which an individual accepted into a pretrial release program ... failed to appear at a scheduled court appearance,” as well as an annual report on the program’s budget. Such burdensome requirements do not apply to bail bond companies. No action has been taken on HB 1885, which was referred to a committee.

During Florida’s 2010 legislative session, the bail bond industry pushed a bill that would have allowed a defendant to participate in pretrial release only if a judge found that he or she was indigent, and pretrial release services would have been restricted to defendants charged with the least serious crimes.

Florida sheriffs opposed the bill, contending that it would make it harder for defendants to get out of jail and would cost taxpayers millions to house and feed such pretrial detainees. When it was learned that Accredited, a prominent Florida bail bond insurer, had held a fundraiser that generated $10,000 for then-state Rep. Sandy Adams only three days before she pushed the legislation through her committee, the House Criminal and Civil Justice Policy Council, sheriffs cried foul.

“This whole thing smells,” said Hillsborough County Sheriff Col. Jim Previtera. The sheriff of Pinellas County, Jim Coats, agreed. “It is very clear to me that when you have special interests with influence, these influences sometimes get preference over taxpayer’s interest.” Ultimately, the bill died in the House.

The business of bail bonds is all about profit, and the industry has been cited as a threat to public safety in Washington state. Just a few days before Thanksgiving in 2009, Maurice Clemmons was bonded out of jail by a bail bond company. That weekend he killed four Lakewood police officers in a coffee shop.

Clemmons was allowed to pay less than five percent of his $190,000 bond by Jail Sucks Bond Company. While he put up a house worth more than his bail, he had quit paying his mortgage and was facing foreclosure. The bonding company claimed it didn’t know about Clemmons’ mental health issues or prior criminal record.

Bondsmen contend they are held accountable and protect the public. In actuality, they have a sweet deal. They usually charge defendants 10 percent of the bond needed to get them out of jail, which is nonrefundable. But in Lubbock County, Texas they pay the county only five percent of the bond if the defendant fails to appear in court.

Thus, they can make money by doing nothing at all, as most bail jumpers are not caught by bondsmen or bounty hunters. “More often than not, the defendants are rearrested on a warrant that’s issued after they fail to appear,” noted Beni Hemmeline, a Lubbock County prosecutor.

Additionally, even when defendants on bond flee and the bonding company is required to pay the full bond amount, sometimes they don’t. In Harris County, Texas, for example, bail bond companies were found to owe the county over $26 million in unpaid bond forfeitures. When the county tried to collect, some bonding companies contested the collection efforts in court while another filed for bankruptcy. [See: PLN, Dec. 2010, p.23].

PLN has previously reported on other problems and abuses involving bonding companies in California, Connecticut and New Jersey, including unpaid bond forfeitures and illegal solicitations of detainees by bondsmen. [See: PLN, Dec. 2007, p.34].

Meanwhile, the bail bond industry has continued to try to expand its influence. In June 2011, over the objections of judges and law enforcement officials, the Wisconsin legislature included a provision in the state’s budget to permit bonding companies. The American Bail Coalition advocated for the change; Wisconsin is one of four states that prohibit bail bond businesses. Governor Scott Walker vetoed the provision, however, saying he supported it but wanted the issue addressed in separate legislation.

“Anytime you place profit-driven organizations in control of an individual’s liberty, corruption must be a major concern,” said Wisconsin state court judge John R. Storck, who chairs the state’s Committee of Chief Judges. “The bail system unfairly penalizes low-income defendants who can’t afford the un-refundable fee. It subverts the justice system, because defendants who can afford to buy their freedom – even those that may pose a relatively greater risk – are free to go at a much lower cost than under the current system.”

The bail bond industry, through ALEC, is also pushing legislation – called the Conditional Early Release Bond Act – that would require some prisoners who are released early to post bonds to ensure their good behavior. If they violate the terms of their release and are not returned to custody within a specified time frame, the bonding company will forfeit the full bond amount to the state.

This creates an additional, potentially huge market for bail bond companies, particularly in states that may be inclined to adopt such “post-conviction bond” programs in order to reduce their expensive and overcrowded prison systems. As with regular bonds, however, they would only be available to prisoners who can afford them. Versions of the post-conviction bond legislation have been introduced in several states, including South Dakota and South Carolina.

Only the courts and criminal defense organizations seem interested in reining in the bail bond industry. For instance, on March 12, 2012, the Ohio Court of Appeals found that a state law prohibiting the solicitation of bonds at the courthouse and on jail property did not violate the First Amendment. The appellate court held, in part, that “because arraignments are often a source of anxiety and distress for citizens, [the state] has a substantial interest in protecting those who are emotionally vulnerable from the undue influence of bondsmen.” See: In re Suitability of Debra Henneke, Court of Appeals, 12^th Appellate District of Ohio, Case No. CA2011-05-039; 2012 WL 764888.

Also, on July 30, 2012, the National Association of Criminal Defense Lawyers (NACDL) announced the approval of the organization’s “first major bail reform policy proposal in over 25 years.” According to NACDL president Steven Benjamin, “The proposal emphasizes release over detention, with a preference for personal recognizance in most cases. For those persons who do not qualify for release on personal recognizance, NACDL supports standards requiring judicial officers to release the defendant with the least onerous conditions possible.”

NACDL noted that “Financial bail (often known as cash or secured bonds) disproportionately disadvantages indigent and working class defendants who lack the financial resources to secure release, resulting in unnecessarily prolonged periods of pretrial detention, even though they may pose no substantial risk of flight or danger to the community. Pretrial detention not only results in such collateral consequences as loss of employment and eviction from housing, [but] detained individuals are markedly disadvantaged in assisting counsel in preparation for trial.”

No doubt, the bail bond industry will oppose NACDL’s policy proposal.

David Reutter, a PLN contributing writer, is currently incarcerated in Florida; Mel Motel is employed by Prison Legal News (PLN) as a research assistant at our main office in Brattleboro, Vermont.

Sources: National Public Radio, Miami Herald, KNOW, www.aiasurety.com, www.mintpress.net, www.sourcewatch.org, www.alec.org, www.jsonline.com, www.firstamendmentcenter.org, www.americanbailcoalition.com, www.nacdl.org, www.prweb.com, www.alecexposed.org

Note: JPI has named September JPI Bail Month and has published a series of reports on bail, for-profit bail bonding and will conclude with a report on the community impacts of bail bonding. JPI has also hosted a series of events throughout the month including panel discussions and conference calls. The finale event is Thursday September 27 in Washington, DC. RSVP by clicking here.