Bail industry gets away with murder, costing defendants and citizens alike
New study reveals bail bond companies profit off of defendants yet often rely on law enforcement to do their job
Analyzing multi-jurisdictional evidence and research, the Prison Policy Initiative has released a report showing that the commercial bail industry exploits legal loopholes in order to avoid paying forfeiture when defendants fail to appear in court. The report, written by Wendy Sawyer, indicates that this lack of accountability is an issue in at least 28 states and argues that the problem is in fact likely nationwide due to flaws inherent in the industry at large.
The Initiative identifies six major loopholes that allow bail bond companies to discharge their duty to ensure court appearance to local law enforcement, meaning that it is not just the defendant who is paying but also the taxpayer. The full amount of the bond is intended to be forfeited by bail companies to the courts in cases of non-appearance, but collated data shows that this is rarely the case. The Prison Policy Initiative deems the system to be “broken,” advocating instead for alternatives to cash bail programs.
Notably, bail bond companies in California accumulated debts from unpaid forfeiture fees totaling between $100 million and $150 million statewide from 2001-2004. More recent analysis in a 2016 Santa Clara Law writeup found that at a minimum bail companies should be forfeiting ‘tens of millions’ of dollars to California counties.
The process of forfeiture triggered by a failure to show is long, and the report identifies six loopholes that have both legal and practical grounding and allow bail companies to avoid payment. The first loophole is mechanical: local officials frequently do not pursue forfeiture payments due to the complex bureaucracy required. When officials do pursue forfeiture, bond companies are granted a second loophole in the form of a long grace period and a third in the form of very strict deadlines.
The fourth loophole results from a practice known as “‘double supervising.” Defendants who have posted bail will also be supervised by pretrial services mandated by courts. This means that the bail bond companies who are meant to ensure appearance in court can shed this duty, relying instead on tax-funded pretrial services to do so.
The fifth loophole is present in the majority of states in the form of legislation allowing bail bond companies to seek remission on their payments. So, even where bond agents do pay forfeiture fees, they may be able to get it back. The report cites a Florida audit, which found that 23 out of 25 cases in which a bail company paid its fees only after the grace period had already elapsed were still given remission.
In 2017, an investigation was published indicating that six NYC bail bond companies were using fake trade names in order to continue operations without being shut down by state officials for large amounts of debt. The ability of agencies to continue to profit off of the bail system despite state laws that allow officials to suspend agencies owing large sums of money is the sixth loophole emphasized by the report.
The streamlining of various research projects into identification of these six loopholes prompted the Prison Policy Initiative to conclude that both the current law and procedural practice absolve bail bond companies of responsibility when defendants do not appear in court but give them credit when they do. The report paints a picture of a collective, exploitative industry operating regularly in more than 40 states.
The Initiative ultimately recommends that the traditional cash bail system be abandoned and replaced with a non monetary system. This would involve providing all defendants with pretrial support where appropriate.
At an institutional level and in order to prevent the phenomenon of “double supervision,” the report says that pretrial service agencies should stop supervising defendants who have been released on cash bail. A stricter adherence to consumer protection law by bail bond companies, meaning that agents would follow policy guidelines that are currently being ignored, is also stressed.
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