The Marshall Project
The United States is one of only two countries — the other is the Philippines — with a private bail industry. In America the process typically works like this: After people are arrested, either they are released on their own recognizance or a judge will require them to put up bail money to be returned once they appear for trial. (Only those accused of the most violent crimes are denied bail entirely.) Those who can’t afford to pay their bail have the option of either staying in jail or using a bail agent, who will charge a nonrefundable fee—usually 10 percent of their bail—to post a bond and bail them out. Defendants do not get that fee back even if they are found innocent. In exchange for the fee, bail agents promise courts that they’ll track down defendants who fail to appear for their next court date. If the defendant can’t be located, the agent is responsible for paying the entirety of the bail. (In reality, courts are often inefficient about collecting the money.)
“We’re their jailer,” says Scott Hall, a bail agent and the president of the Professional Bail Agents of the United States. “Every time I sign my name [to a bail bond] I’ve got to bring a body or bring a check.”
In many other countries’ court systems, the influence of commercial bail is seen as “a public mischief in that it attempts to pervert and obstruct the court of justice,” wrote F. E. Devine in his 1991 book, Commercial Bail Bonding, which remains the only international survey on pretrial release. In some countries, such as England and Canada, making a profit by posting a defendant’s bail is a crime.
America’s current pretrial system is an outgrowth of English common law, which like many other court systems relies on the word of defendants and relatives, as well as collateral, such as property, to safeguard against people skipping court. This evolved, in the entrepreneurial American spirit, into the practice of posting bail for profit, and the business has since become an integral part of the justice process in most of America. Thanks to the influence of the bail bond industry—mostly subsidiaries of major insurance companies—bail amounts have surged, generating huge profits for the industry. In 1994, 24 percent of defendants were released on a commercial bail bond. By 2004, that number was 42 percent. Average bail amounts for those detained pretrial on felony charges more than doubled between 1992and 2006, from $40,000 to $90,000. It’s estimated that bail bonds are a $14 billion industry.
Opponents of this system argue that it effectively punishes poor people who can’t afford to get themselves out of jail. In 2011, Attorney General Eric Holder characterized the costs of bail as an impediment to lowering prison populations, noting that nonviolent, non-felony offenders remain in custody “because they simply cannot afford to post the bail required—very often, just a few hundred dollars.” While they languish in jail, they may lose their prospects of returning to a normal life. Research has shown that those who remain detained while awaiting trial were more likely to go to prison and received longer sentences compared to those who were released. It’s harder to mount a robust defense from jail—to find witnesses, to meet with an attorney, to raise the money to pay for a defense. Moreover, jailed defendants could lose jobs, housing, custody of their children, and ties to the community that may influence judges and juries at sentencing.
Industry advocates argue that without for-profit bail bonds, there would actually be more people in jail. “I don’t believe there are people in jail who can’t afford bail,” says Eric Granof, vice president of communications for AIA Bail Bond Surety, an organization representing some of the largest insurance companies that underwrite bail bonds. “There are payment plans, and families can work with bail bondsmen to get people out. Saying people are languishing away is just not true.”
National data suggests otherwise. About two-thirds of the jail population consists of people awaiting trial—more than 450,000 people. And five out of six of those individuals are there either because they couldn’t afford bail or because a bail agent declined to post a bond.