We started our deep dive into the details of bail, bail bonds vs. pretrial release, and bail reform in a previous post, and will continue to review and comment on this very important issue. The previous exploration focused on a report by the U.S. Bureau of Justice Statistics (BJS) published in 2007 and authored by Thomas H. Cohen and Brian A. Reeves, statisticians with BJS. For the full report, please visit the BJS resource online. Today, we’ll provide an overview of commercial bail and pretrial release from the perspective of the paper’s authors.
Bail Agents in the U.S.
Estimates provided by the Professional Bail Agents of the United States indicate that there are roughly 14,000 commercial bail agents – often referred to as bail bondsmen – in the U.S. These bail bondsmen assist over 2 million defendants in securing release from jail as they await their trials. The regulations and requirements to be a bail agent vary by jurisdiction, but for the most part is handled at the state level. In Maryland, bail bonds and licensing are regulated by the Maryland Insurance Administration.
In the U.S., only four states do not allow bail bonds (commercial bail). These are Illinois, Kentucky, Oregon, and Wisconsin. While there are no laws prohibiting commercial bail, there is very limited activity in Washington, DC, Maine, and Nebraska. This overview can be visualized in the associated image.
How Bail Works in a Nutshell
Bail agents typically work as independent contractors under the auspices of a surety company. The surety (insurance) company charges a fee to the bail agent and the bail agent, in turn, charges a fee to his or her client. This fee is usually 10% of the total bail amount, though this may vary. Agents also will often require collateral for bail commitments, though this is also not always the case. Bail bondsmen have also developed payment plans, small down payments as low as 0%, and others to make posting bail as easy as possible for clients.
Recovery of Fugitives, aka Bounty Hunters
While bounty hunters have been glorified and made into television stars, the reality is much less glamorous. Bail agents are typically given latitude to recover a defendant if they fail to appear for the court appearance that the bondsman has guaranteed. If the defendant is not returned, the bail agent is responsible for paying the court the full amount of the bail, and so there is naturally an incentive to recover fugitives. In most jurisdictions, revocation of bail is allowed – this provides the bail agent the opportunity to recover the fugitive/defendant to custody before the court date. The bail bondsman will then be free of the financial liability for the bail amount.
Critics of Commercial Bail
Beginning roughly in the 1960s, commercial bail has come under attack by various critics. Two institutional critics include the American Bar Association and the National District Attorney’s Association. Since the 1960s, there have been ebbs and flows in the level of attention paid to the issue of commercial bail and bail reform. In 2018, the decision was made by Google, Facebook, and other major Internet advertising platforms to no longer allow overt advertisements for commercial bail services.
The Manhattan Bail Project
The first notable example of “reforms” in the release process for defendants came in 1961, when the Manhattan Bail Project made it possible for those charged to be released from jail without a financial guarantee. The bar for release at that time because clear demonstration of community ties and certain verified information.
The project found success and eventually led to the Bail Reform Act of 1966. This act, in short, created a presumption in favor of release for most non-capital defendants. This led to the notion of “pretrial release” programs that are based on the court’s assessment of the defendant’s likelihood of returning for trial. This includes non-surety release including refundable deposit bail and conditional release.
The Bail Reform Act of 1984 followed and provided new procedures that allowed for the pretrial detention of those defendants that were believed by the court to pose a risk to the community or to be a flight risk. The juxtaposition of the two acts is enlightening, as it clearly shows movements toward and away from more lenient procedures and policies for dealing with those accused of crimes – especially serious and violent crimes. Much of the current debate regarding commercial bail centers on the notions of the very purpose of bail, from a means to guarantee a defendant’s return for trial to notions of public safety.
Bail Reform For & Against – the Argument Continues
Up next, we’ll look at the common arguments for and against commercial bail. The topic is hotly debated among various groups, and some truly unusual alliances have formed in the process. The argument is marked on both sides by obvious appeals to emotion, misinformation, and no shortage of self interest. We’ll try to take an objective look at the issues, even as we acknowledge that we operate quite obviously from a position of interest in the continuation of commercial bail – it is, after all, our livelihood.