Bail is an essential lubricant of American justice, asserted Nicholas Wachinski, the executive director of the American Bail Coalition, a trade group for insurance companies that underwrite bail bonds. But now bail agents are under siege by so-called reformers, who argue that the traditional bail system forces poor defendants to choose between paying fees they can’t afford and sitting in jail until they go to trial. A growing number of states—New Jersey, Colorado, Virginia, Delaware, West Virginia, Hawaii, and others—are limiting the use of bail for defendants who don’t pose a threat, or replacing for-profit bail with government supervision.
Of course, Wachinski said, the bail-bond industry will continue its tireless lobbying to protect its lucrative franchise, but he was there with another message: Innovation! New products! New markets! “A brave new world!” Why should bail bonds be only for defendants who are awaiting trial? How about bail bonds for a whole new class of customers: People who have already been convicted.
“My task,” Wachinski told the crowd, “is to bring the sexy side of bail back.”
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In a courtroom just outside Jackson, Mississippi, Kristina Howell was about to experience a new, “sexy side of bail.”
After spending two days and nights in jail for drunk driving this past August, Howell was brought to the Byram city court, where she pleaded guilty and was told she had to pay a fine of $1,044. If she couldn’t come up with the money on the spot, she was headed back to jail. “I panicked,” said Howell, who lives and supports her son “paycheck to paycheck.”
But there was one other option. The judge explained to Howell that she could avoid jail by purchasing a new kind of bail bond, a post-conviction device that bail agents in Mississippi are busily promoting around the state. It would cost $155, and would buy her two extra months to come up with the money to pay her fine. Howell was then escorted to another room, where Patty Hodges from the Mississippi Bonding Company sat ready with the paperwork.
If Howell had been arrested two months earlier, her experience would have been different. Before this summer, those who found themselves facing a fine they couldn’t afford were allowed to pay the court in installments. But that system wasn’t working, says Dale Schwindaman, a Byram judge. “People would sign up for a payment plan, but then they wouldn’t come in and pay,” he said. Under the new system, if a person doesn’t return to court to pay her fines, it’s the bail agent’s job to track her down. This new system takes some of the burden off court clerks, who were hounding defendants to pay, as well as local law-enforcement officers, who were tasked with rounding up the people who failed to settle their debts. “It gives people some time to come up with the money, and they also give us a way to secure them actually paying the fine,” said Schwindaman. And it gives the bail bondsman a tidy profit.
Mississippi has been a kind of laboratory for bail-industry experiments. The state is the country’s poorest and has the third-highest per-capita incarceration rate. The Mississippi Bail Agents Association exercises strong legislative influence, boasting on its website that “[s]ince 1992, there have only been two years in which the MBAA did not succeed at making changes to the state bail statutes.” The bail industry has given more in campaign contributions per capita to state politicians in Mississippi than anywhere else. Versions of post-conviction bail legislation have also passed in South Dakota and Michigan, a victory celebrated by bail agents but not yet put into widespread practice.
