The Fight to Fix America's Broken Bail System

Jails are filled with low-risk offenders awaiting court dates. There's bipartisan support to change that, so why is it still hard to get anything done?
by | October 2017
(David Kidd)

Last May, Houston police pulled over Maranda Lynn ODonnell. The 22-year-old had driven through a toll plaza without paying. When officers ran the tags on her car, they found she was driving with a suspended license, didn’t carry car insurance and had already racked up $1,487.25 in unpaid tolls. The officers arrested her.

During her intake at jail, a pretrial services agent interviewed her and recommended she be released on a “personal bond,” which doesn’t require any upfront payments. Nonetheless, the next day a hearing officer set her bail at $2,500.

Some people have the resources to post bond on their own. But most don’t. Instead, they turn to a bail agent who, for a fee -- typically 10 percent of the total bond -- puts up a promissory note for the total bail amount. In theory, the bonding agent will pay that amount if the person fails to appear. To bail herself out of jail, ODonnell needed $250. But she had just started a new job at a restaurant, and she didn’t have any friends or family who could come up with the money. As a result, ODonnell, the mother of a 4-year-old girl, stayed in jail for three days.

“It’s long been a basic principle of constitutional law that no human being can be put in a cage because she can’t make a payment,” says Alec Karakatsanis of the nonprofit Civil Rights Corps, one of a group of organizations currently suing Harris County over its bond practices. “Yet it’s happening everywhere.”

Every year, more than 10 million Americans are arrested and taken to jail. Most are released. However, on any given day, jails house some 700,000 people. A large majority of them are there because they can’t afford to make bail. On a typical day in Harris County, 9,000 people are locked up in the county jail system. A significant number of them are low-risk offenders awaiting trial on misdemeanor charges who can’t post bail.

 

On a typical day, some 700,000 Americans are housed in county jails. Most of them are there not because they're dangerous, but because they can't post bail. (Flickr/Paul Sableman)

 

Texas policymakers knew they had a growing problem. Twenty years ago, 1 in 3 jail inmates in the state was awaiting trial. By 2017, that had escalated to 3 out of 4. Mostly, these were people who could not afford to make bail. Jail time cost people their jobs, their houses, even their families. It also cost Texas taxpayers: A billion dollars a year was spent on pretrial housing.

To Texas Chief Justice Nathan Hecht, the system looked ripe for reform. The Texas Judicial Council duly recommended a series of fixes: Expand the use of risk assessment tools to help judges better gauge flight risks and potential danger to the community; change the constitution to create a presumption of release on personal bond for low-risk defendants; and allow judges to deny bail to any high-risk defendants. (As it was, judges could only deny bail in capital murder cases.)

The conservative Texas Public Policy Foundation signed off on the proposal. So did influential Republican and Democratic lawmakers. To lead a legislative effort to turn the ideas into law, Hecht turned to Sen. John Whitmire, the Democratic chairman of the Senate Criminal Justice Committee, and Rep. Andrew Murr, a Republican former judge. Legislatively, it seemed like a sure thing, except for one group -- the state’s bail bondsmen.

Bail is a big business. Of the $14 billion in bonds that are issued across the country each year, some $2 billion is profit for bail bond companies themselves. Nationally, there are more than 25,000 such companies; Texas alone has hundreds, maybe thousands of bail bondsmen. Whitmire and Murr’s bill threatened the bail industry by encouraging courts to release more low-risk arrestees without requiring so-called surety bonds. Ironically, what elicited even greater opposition was that bail reform was too tough: Letting judges deny bail to high-risk individuals was a blow to bail companies, since they earn higher fees on higher-risk defendants. The bill was defeated. “This is the classic case of a powerful special interest being able to block legislation that would change a system that they literally make millions of dollars off of every year,” says Whitmire.

Hecht was stunned by the loss. “The logic of it was so strong, the benefits were so clearly demonstrable and the politics so bipartisan,” he says. “Bipartisan things just don’t come along very often these days. I did not think it would be as hard as it turned out to be.”

Welcome to the upside-down world of bail in America. A system that dates back to medieval England is resisting 21st-century updates, at least in this country. While a few states and localities have taken meaningful steps toward reform -- relying on risk evaluations and pretrial services rather than cash bail for low-level offenders -- their efforts are threatened by significant pushback.

 

Texas Chief Justice Nathan Hecht's plan tp reform his state's bail system went down in defeat after the bail industry came out against the measure. (AP)

 

Right now, America’s cash bail system itself is on trial. Earlier this year, Maryland’s Court of Appeals issued rules that ban the practice of holding low-risk, misdemeanor offenders on money bonds. In April, a federal judge in Houston found that Harris County “has a consistent and systematic policy” of imposing cash bail on defendants in misdemeanor cases and that “these de facto detention orders effectively operate only against the indigent, who would be released if they could pay at least a bondsman’s premium, but who cannot.” Civil rights attorneys have brought, and in many cases won, similar cases in Alabama, Mississippi and Tennessee.

In other states, court systems are making changes proactively. In Arizona, a criminal justice task force convened by Chief Justice Scott Bales developed rule changes that have lowered the state’s pretrial incarceration rate by encouraging judges to utilize nonjail alternatives and pay closer attention to defendants’ financial circumstances when setting bail bonds. In July, courts in New Mexico began to operate under new rules that prohibit judges from requiring money bail for low-risk offenders who can’t afford it. According to the Laura and John Arnold Foundation, more than 40 states now have task forces or commissions considering changes to bail and pretrial detention.

The most sweeping changes, however, have taken place in New Jersey. On Jan. 1, the state rolled out a new pretrial system, developed jointly by the administration of Gov. Chris Christie, the legislature and advocates of criminal justice reform. Three years in the making, it comprises statutory and constitutional changes, including ones that allow judges to detain high-risk arrestees. Previously, New Jersey, like Texas, could only deny bail to people arrested for capital murder. In addition, the New Jersey measure provides funding for a robust network of statewide pretrial services. The state has also adopted a risk assessment system (developed by the Arnold Foundation) that gives judges a better sense of the potential dangers posed by people being released from jail.

One of the results of reform has been the virtual disappearance of commercial surety bonds from the criminal justice system in New Jersey. That has devastated the state’s bail bonds industry and alarmed the companies that insure the bondsmen’s bonds.

Jeffrey Clayton, who heads the American Bail Coalition, says that when New Jersey voters approved the changes to the constitution, they had intended to adjust only the top end of the system and the bottom end -- let judges lock up the most dangerous offenders until trial and let low-level offenders go home. In Clayton’s opinion, the voters hadn’t meant to end the commercial bail system for felony-level offenders. Although the industry had expected reform to cut its business in half, it has “lost 100 percent,” says Clayton.

The industry is fighting back in New Jersey and everywhere else. It has filed lawsuits challenging the reforms in New Jersey and New Mexico and is pushing Harris County to appeal the decision against it in court. It plans to urge the Maryland Legislature to overturn the reform rules the state’s court system put in place. These actions are part of a broader argument made by anti-reform factions: Risk assessment is not a safe or effective substitute for cash bail.

 

Bail is an ancient part of Anglo-American legal systems. In medieval England, courts released all but the most dangerous offenders before their trial. To guarantee that defendants appeared at trial, courts also required bail bonds. The amount of bond was pegged to the severity of the crime and the defendant’s ability to pay.

At the beginning of the 20th century, bail bonds became a business. Bail companies began to sign surety bonds with the courts, which in turn were insured by commercial insurers. Bail bondsmen were then responsible for ensuring that defendants appeared in court. That appeared to spare the government the expense of monitoring people out on bail. As a result, the cash bail system grew quickly. But over time disparities emerged. People who had no resources often languished in jail. In order to get out, they pleaded guilty to felony offenses at a higher rate than people who paid bail. Longer jail stays were associated with worse future outcomes. A disproportionate number of the people experiencing the adverse effects of pretrial detention were minorities.

In the 1960s, the Vera Institute of Justice began to explore an alternative: releasing people without a secured bail bond. The institute started with a question: What were the characteristics of people who showed up for trial without posting a secured bond? Certain features quickly surfaced, such as prior criminal record, employment history and family connections to the community. The institute generated risk scores that could be used to make recommendations regarding pretrial release. After three years of trial, the project found that defendants released on nonfinancial conditions (based on risk scores) appeared for their day in court three times more frequently than similar defendants released on surety bail bonds.

Risk assessment was born. “Releases on recognizance” increased sharply in the 1970s and most of the 1980s, as judges made roughly equal use of surety bonds and personal recognizance. That began to change in the late 1980s. Congress passed legislation that allowed courts to factor into bail decisions not just the likelihood of a defendant appearing for trial but also the public safety risk they posed. Most states quickly passed similar directives. Judges responded to the increased concern about public safety by turning more frequently to cash bail. While most large jurisdictions still had pretrial services and made some use of risk assessment systems, they used them inconsistently and ineffectively, according to Cherise Fanno Burdeen, who heads the Pretrial Justice Institute. The result was a sharp rise in the use of cash bail.

 

New Jersey lawmakers and Gov. Chris Christie's administration implemented sweeping changes to the state's pretrial system earlier this year. (AP)

 

In the late aughts, Burdeen and others began to advocate for changes. Despite a decade of robust jail building and falling crime rates, jails were overcrowded. Reformers championed a new generation of risk assessment tools and expanded pretrial services. The Arnold Foundation developed one such risk assessment tool, which it piloted successfully in Kentucky and encouraged other jurisdictions to adopt. The bail industry fought back politically, supporting legislation and ballot initiatives in Colorado, Florida, Georgia and Virginia intended to expand the use of secured money bonds. During the Obama administration, however, the U.S. Justice Department hosted a symposium on bail to explore reform strategies, the first since 1968.

Investigators also looked into the operations of bail agents. In 2014, New Jersey’s State Commission of Investigation published its results, which found that bail bond agencies were being operated by unlicensed individuals, some with criminal records. Bail bond agents often hired people in jail to drum up new clients. The commission also found that New Jersey’s counties routinely failed to capture tens of millions of dollars in forfeited bail. Instead, penalties were often negotiated and settled for pennies on the dollar. The bail system as a whole, according to the commission, was “highly prone to subversion by unscrupulous and improper practices that make a mockery of the public trust.”

Soon thereafter, New Jersey began work on overhauling the system, the results of which were launched this year.

Faced with the kinds of criticisms that surfaced in the New Jersey report, the bail industry claims to have retrenched. Clayton of the American Bail Coalition says the industry isn’t opposed to making it easier to release low-risk, misdemeanor defendants. It just wants to preserve a role for money bail in felony cases. “The key core of our business is high-risk felony cases,” says Clayton. “That’s where judges should use us.”

But that belies the attacks the bail industry is taking against reforms, particularly the use of risk assessment. In states such as Colorado, Maryland, New Mexico and Texas, the industry has mounted broad attacks on measures the states have put in place, raising questions of effectiveness, safety and expense. One of the key arguments is that pretrial services and supervision -- a key component of a risk assessment approach -- will open sinkholes in state budgets.

Pretrial services can indeed be expensive. Washington, D.C.’s pretrial services program is often held up as a model, but it costs $60 million a year. That’s a figure that Tara Blair, who runs Kentucky’s statewide pretrial services division, says “gives the cost of pretrial services a bad name.” Her state manages to provide effective pretrial services to a population of 4.4 million for just under $14 million a year. Urban localities such as Toledo, Ohio; Allegheny County, Pa.; and Denver have found ways to keep bail reform costs in check. Denver’s Community Corrections Department, for instance, began to implement risk assessment in 2012 and enhanced its pretrial services program the following year. Denver now releases without a secure bond 40 percent of people arrested on felonies.

One cost of the program is the monitoring of those released on bond. Greg Mauro, who runs Denver’s pretrial services department, says it’s tempting to aggressively monitor lots of people after such systems are first put in place, but that most agencies find over time that it’s not necessary. Although his corrections department uses GPS bracelets to monitor some arrestees, many are supervised using less-restrictive methods. One innovation that dramatically boosted court appearance rates: texting people reminders.

Burdeen is worried about one of the points Mauro makes: the tendency to monitor aggressively. “I fear that we let all these people out without posting bonds, but we will saddle them with so many conditions for release and with surveillance to such a degree that we will have incarcerated them again.” She sees this as something to be mindful of when building alternatives.

Several rural counties have also found simple ways to provide pretrial services economically. Faced with a continual jail overcrowding problem, Major Michael Merican, who ran the jail in rural St. Mary’s County, Md., until a recent promotion, decided it was just as easy to supervise many of the county’s arrestees outside of jail as inside. St. Mary’s borrowed a tool from Montgomery County, a wealthy suburban county near Washington, D.C., with a well-regarded pretrial services program: the use of drug screening and GPS bracelets. He then directed two jail staffers to provide pretrial services; another deputy on “light duty” keeps tabs on inmates who are released under GPS monitoring. “There is no need to reinvent the wheel here,” says Merican. “Most any jail with a work release program is already set up for pretrial services to a certain degree.”

The success of the pretrial program, along with other initiatives, allowed St. Mary’s to ease overcrowding. Moreover, 99 percent of the people who go through the pretrial program show up for court dates; 70 percent are not sentenced to additional jail time.

Passaic County, N.J., Judge Ernest Caposela, one of the three judges to pilot New Jersey’s new pretrial system, says he’s seeing similar improvements in his state. The state’s pretrial jail population has fallen by 20 percent since the beginning of the year.

New Jersey judges are realizing that “the most effective way to ensure that someone appears in court is to remind them that they have a court date, just like when you have a dentist appointment,” Caposela says. Other more intensive measures of supervision include a weekly call in or report in to pretrial services. Only about 5 percent of people are actually ordered to wear ankle bracelets, according to Caposela, and that number is going down.

As part of its reforms, New Jersey also invested in IT upgrades that give judges and prosecutors a better sense of defendants’ histories and overall life situations. That, along with provisions designed to speed up trials, has had profound effects. They’ve encouraged prosecutors and judges to think about defendants in a different way. “With early factual analysis, we are able to make an early diagnosis,” says Caposela. “Does this person need surgery” -- such as a heavy dose of the criminal justice system -- “or can we put a cast on it and send it home?”

That is potentially momentous change. Instead of thinking about defendants engaged in a case in an adversarial court system, the new framework is encouraging prosecutors and judges to think about arrestees as people in need of help or correction. New Jersey’s approach to bail reform is a model of careful planning. It is sure to inspire reform-minded legislators in the years to come, just as the reforms championed by the highest courts of Arizona and Maryland will inspire other state supreme courts to act.

Back in Texas, Chief Justice Hecht is trying a different tack. He’s going straight to localities. The impetus came from two neighboring but very different counties -- Dallas County, which is heavily Democratic, and Tarrant County, home to Fort Worth, which is staunchly Republican. Despite their political differences, in the months after the failure of bail reform in the legislature, both approached the Supreme Court with the same message: We want to do bail reform; and we want your help to move ahead.

Hecht agreed that the Supreme Court would provide help identifying best practices. These days, he is spending time talking with jurisdictions around the state and offering technical assistance. “It’s really fascinating,” he says. “When there is this kind of failure of state policy, local government can just come right in. There’s nothing to prevent judges from doing it themselves. It is totally up to them.”

*This article has been updated to specify that a 2014 investigation into the operations of bail bond agents was conducted by the New Jersey State Commission of Investigation.