Lydia D. Johnson
Excerpted from: Abstracted from: Lydia D. Johnson, The Politics of the Bail System: What's the Price for Freedom? , 17 Scholar: St. Mary's Law Review on Race and Social Justice 171 (2015) (311 Footnotes)
*172 What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply money. -- Robert F. Kennedy Attorney General
* * *
The system discriminates as bail bondsmen remain part of the political process, with interests antithetical to those of the accused. It is true that a bondsman provides a necessary service to a "captured audience," but a bondsman business is not there to act like a nonprofit would, with lofty goals of enhancing the quality of one's life. A bondsman business is there *187 like any other business -- to make money and increase profits. The rise of the bail industry as a dominant force is the result of a methodical plan to induce decision makers to support their initiatives under the guise of savings to taxpayers and public safety propaganda.
The culprit responsible for organizing the agenda to win political friends and influence state budgets is the American Legislative Exchange Council (ALEC). ALEC, founded in 1973 by a right-wing activist, enlisted corporate giants and other conservatives to join this movement. ALEC's mission statement contends its goal is to "discuss, develop and disseminate public policies that expand free markets, promote economic growth, and limit the size of government." Questions about the organization's influence were exposed by the Center for Media and Democracy through the website entitled "ALEC Exposed." This led to a feeding frenzy by the media outlets to uncover the scope of ALEC's allies and who benefitted from this association.
A treasure trove of documents detailing the organization's inner workings was leaked by an activist and analyzed by policy experts who were *188 astounded at the coalition of business and political members. Each exposé began to unravel how legislatures were given instructions to manipulate the political process to benefit ALEC. Revelations that the organization helped corporate America draft legislation for states and push the legislation through by right wing legislators, at the expense of minorities, consumers, and the education system, was just the beginning. Donations by David and Charles Koch of Koch Industries are estimated to exceed $1 million dollars to support conservative causes. Another finding of ALEC's influence was discovered when a Florida lawmaker neglected to remove a boilerplate clause from a bill she introduced. The legislators who are members "receive trips, food and lodging that provide many part-time legislators and their families with vacations, along with the opportunity to rub shoulders with prospective donors." The revelations of the secret relationships between corporations and ALEC led to an online petition to force legislators to disclose their association. The shift in support for ALEC led corporations to abandon their support for the controversial organization when it became *189 known for orchestrating the "stand your ground" laws and voter suppression tactics.
The American Bail Coalition has been a member of ALEC for more than a decade and has described the American Legislative Exchange Council as its "life preserver." The attack on government pretrial services by the bail industry follows ALEC's playbook on how to discredit the competition and offer their services as the alternative. The "AboutBail" website details the predatory tactics to grooming the electorate to be seduced by the industry. The first step is for the bail agent to mask his or her behavior by establishing him or herself as the kind of person one would not suspect had an alternative motive. The website further advises them to get to know the legal community, particularly judges and district attorneys, so the agent can educate them on bail bonds and legislation.
The second tactic is the ability to charm and radiate sincerity by gaining a better understanding of why people support government programs. Bail agents recruit collaborators by spending time with them to establish a trusting relationship in order to gain support for fighting legislative change. The agents will deliberately cultivate a relationship with a powerful ally, such as a prosecutor, to speak on their behalf to the community *190 to convey credibility. The agent continues the grooming by doing favors, such as attorney recommended bonds. The "AboutBail" article concludes that time spent nurturing the relationship is beneficial because it solidifies community ties.
ALEC members contend the organization merely "provides a forum for lawmakers to network." Ultimately, ALEC devotees succeed in hoodwinking the public because participants agree to keep the benefits of their relationship a secret. The object of the bail industry's ire are government pretrial assessment programs that release citizens from custody based on a rubric evaluation and not contingent on the ability to pay. Most criminal justice studies are sponsored by agenda driven stakeholders who are more interested in validating their perspective than resolving the dispute based on unbiased data. As a result, one side of the conflict is the private sector culture that believes less government increases competition without regard to its impact on anyone. This leads to a private sector that is competing against a public sector culture that believes the government can provide a service that is fair across the board to everyone. Dueling statistics from proponents and opponents support their respective positions alleging a successful rate of court appearances after being released from custody.
The pretrial assessment programs were initiated as an alternative to correct the abusive use of bail by judges. A point system that took into account community ties, criminal history, and other variables was suggested as a tool to predict whether someone would return to court. The Conference of Chief Justices endorsed the court administrator's pretrial assessment that took into account the purpose of bail and advocated discontinued use of bail schedules. The New York Chief Justice's assessment included revamping the bail statutes with public safety and failure to appear in mind, while allowing judges the discretion to impose conditions as an effective method to ensure fairness. Consequently, the final conclusions by pretrial assessment advocates agree, "the extensive use of money bail as the primary release mechanism has distorted the pretrial justice process."
The bail industry responded with their studies that dismissed the pretrial assessment studies as biased and taunted assessment advocates that research published by the Department of Justice supported commercial bail as the most effective method to decrease failure to appear rates by accused persons awaiting disposition of criminal cases. One of those advocates, The Golden States Bail Agents counsel submitted a memo emphasizing the credibility of the studies relied on by the bail industry. Another study out of Dallas, which further showed support of the bail industry with a finding of a slightly better return rate, cautioned *192 victory until differences across specific offense types could be evaluated. Pretrial assessment advocates countered the bail industry relied on faulty data by dissecting every study the bail industry used to support its position.
However, not all agreed with the studies presented by bail industry advocate or sang the same praises of the commercial bail industry. In Wisconsin, the commercial bail industry's attempt to return was met with a flurry of criticism that forced the governor to veto the bill. Vocal critics denounced the crafty bill as a scheme through which money meant for crime victims to now go to bail bondsmen when the defendant was convicted. The Governor of Wisconsin, Scott Walker, remarked that his decision to veto the measure resulted from the same easiness he had to two years when the same bill was proposed.
The bail industry then began a campaign to methodically discredit the accuracy of the pretrial assessment programs. The two-fold attack questioned the cost to taxpayers to run the government sponsored programs *193 and injected a fear factor element of whether it could protect the public. The group associations assembled at conventions to map out a strategy on how to discredit the pretrial programs. Powerful bail bondsmen began to exert their influence, rallying their cohorts to exert their influence to marginalize pretrial assessment as inefficient and without taking into account the public's safety. For example, a Lubbock, Texas bail bond office manager recounted an incident where he prevented a client who was eligible to be released free of charge by pretrial services was subsequently denied release when the manager confronted the judge who signed the order. Another example of this influence occurred in Broward County, when its pretrial program suffered the same fate as the Lubbock program, after being heralded as saving the county money. In Broward County, the bail bondsmen group hired a lobbyist who worked in the same capacity for the commission that ultimately defunded the Broward pretrial program. Another shutdown of bail reform occurred in Connecticut where one of its representatives indicated he worked tirelessly for years to enact bail reform, but efforts were thwarted each time by the powerful bail bond lobby.
*194 The collusion between prosecutors, judges, and bail bondsmen skews the decision-making process determining the actual charge, the amount set for bond, and ultimate payment required for release. The district attorney from Clatsop County, Oregon acknowledged collusion when declaring that "[t]he bail bond system is rife with corruption." The assumption that prosecutors use race as a factor to determine who should be charged with an offense, while unsubstantiated empirically, is accepted as true because of the disproportionate number of African- Americans and Latinos incarcerated.
The basis for some of the decisions made by prosecutors was exposed in a study that showed disparities in the treatment of African-Americans versus Anglos. Data corroborating that African-Americans and Latinos were more likely to be detained pretrial than similarly situated whites, confirms prosecutors' abuse of their discretion. There have been numerous scandals involving "pay-to-play" types of schemes involving officials ranging from judges to police to jailers, all conspiring with bail bondsmen in order to get paid. In an attempt to stomp out this *195 corruption, the Federal Bureau of Investigation conducted an undercover operation in Louisiana, where judges were arrested in a sting designated "Wrinkled Robe" for funneling business to bondsmen for a cut of the profits. In fact, a bondsman testified that contributing to a judge's campaign is the price for doing business. This scheme was not the first. There was a similar scheme in Chicago in the 1960s that led Chicago officials to shut down the commercial bail industry, and court clerks assumed the task securing the appearance of clients with charges pending. A National Public Radio exposé on bail bond debt discovered that bondsmen in California owe counties $150 million, and bondsmen in New Jersey owe $250,000.
Ultimately, any testimony for or against commercial bail or pretrial services has been met with skepticism based on the affiliation of the discussant. Efforts to have an unbiased discussion are answered with accusations of deliberately hijacking the question to suit a particular agenda. This failure to come to a solution only hurts those in society *196 most susceptible to discrimination; the poor and minorities. An open letter from a judge, offering his support for pretrial services based on his personal experiences as a prosecutor, was ridiculed by pro-bond advocates. The Baltimore Sun even took dissenting Chief Judge Mary Ellen Barbera to task when she trivialized any potential harm resulting from a lawyer not being present at a bail hearing.
A. The Discrimination Falls On The Backs Of The Poor And People Of Color
An examination of the Commercial bail bond business practice to require payment of a non-refundable fee in order to be released from jail has a poll taxesque aura in the 21st century. The bond payment is used as a precondition in order to be released from custody without regard to financial capability. The impact of this type of legal intimidation has a disproportionate impact on minorities and the poor. A Milwaukee Deputy District Attorney voiced his opposition to attempts to return to commercial bail due to the financial hardship it created for minorities and *197 low-income individuals. This has drawn increased attention and spurred an investigation by government officials into the rising costs of housing inmates awaiting disposition of their criminal case. An arrested Occupy Wall Street protestor noted the impressive number of citizens in custody unable to post a $50.00 bond and advocated redirecting activism efforts to the communities affected by this injustice.
Ironically, a spokesman for the Professional Bail Agents concedes the system is not fair but maintains it is the best in the world. At the same time, unsuspecting citizens eager to be released from jail unwittingly sign contracts giving bondsmen authority to charge fabricated fees for contrived breaches in agreement in order to justify keeping their money. Some jurisdictions have legal procedures that are rarely utilized by lawyers to challenge bail. For example, Paul Kennedy, a Houston DWI attorney and criminal defense blogger, pointed out a rarely used provision in the Texas Constitution which allows attorneys to combat prosecutor's assertions that a bail schedule is the decisive authority on when bail can *198 be denied. Other jurisdictions have nicknames, for instance in New Orleans, that convey bail's callous use without regard to seeking justice. New Orleans inmates coined the phrased "D.A. time" which is a 60-day waiting period while a decision is made whether or not to file charges.
One tool to aid in inmates' defense while awaiting trial are publications designated for inmates to help educate them of their rights while in custody. The Freedom Fund non-profit is the only program in the nation that pays the bail for low income people, and has a 93 percent return for scheduled court dates. The Freedom Fund is just one humanitarian tool available to resolve the unfair pretrial detention of the indigent until the bail industry as a dominant force in criminal jurisprudence is diminished. Other such resources and humanitarian tools are needed, however.
The United States has approximately 2.3 million in prison, which is "more than any other nation." Statistics indicate: "60 percent of those imprisoned are people of color though they constitute only 30 percent of the total U.S. population." While studies continue to conflict on the effect of race and pretrial decisions, it is only logical to conclude that because a higher percentage of minorities and the poor are incarcerated they are being affected the most by the deadlock between the competing factions in the debate over bail.
* * * SOLUTIONS TO THE BAIL SYSTEM
The counterpart to any problem is its solution. Due to the gratuitous and discriminatory nature of these archaic bail bond systems, changed laws allow judges to implement different alternatives outside of what these defendants have in their pockets. "Released on recognizance" is one alternative provided to lower-risk defendants based upon their word to abide by specific rules and regulations. Before deciding which defendants are low-risk or high-risk, judges take into account the circumstances and characteristics of each arrestee.
The state of Maryland has revamped its laws to circumvent the plague of bail as a business by implementing pretrial release programs. Pretrial release programs provide due process to those accused of crime, maintaining the integrity of the of the judicial process by securing defendants for trial, and protecting victims, witnesses, and the community from threat, danger, or interference. These programs afford defendants eligible for release prior to trial the option to not sit in jail or unwillingly participate in the world of bail and bail bondsmen; both of which cost taxpayers a lot of out of pocket.
Other states, like Kentucky, Illinois, and Oregon have found a solution to bail problems by banning commercial bail bonds and bounty hunting. According to the Bureau of Justice Statistics, in 2011, nearly three-quarters of a million individuals were in jail and 61% of those individuals were awaiting court action on a current charge. It is likely that most of those individuals are indigent citizens imprisoned for petty crimes that commercial bail bondsmen do not take interest in because they cannot make a profit from or those that cannot afford bail. Another solution would be to challenge the constitutionality of the bail system as a whole, through each states' "holy grail": their constitutions.
*200 A. The Maryland Solution: How Its Article 24 And Declaratory Judgment Changed Its Law?
In Maryland, when a defendant allegedly commits a crime, he goes before a Commissioner, who conducts a pretrial hearing, where no record is preserved, to ascertain whether the arrestee is to be detained, released on bail, or released on the arrestee's own recognizance. Counsel is normally not present during these hearings, and when counsel is present, it is only for those that who cannot afford it. This leaves indigent people at the mercy of Commissioners, who do not have to be lawyers or have any type of legal background. Because imprisonment is more probable than release, this deprives the arrestee of his procedural due process. Article 24 of Maryland's Declaration of Independence states:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the Law of the land.
In DeWolfe v. Richmond, the Maryland Court of Appeals have long considered state-furnished counsel for indigent defendants an integral part of procedural due process. Without counsel present, unrepresented arrestees are less likely to be released on their own recognizance, more susceptible to higher bail where they have to pay the expense of the bail bondsman's non-refundable 10% fee to avoid detention. With the help of these commissioners and the judges affirming their recommendations, this further perpetuates the discrimination against indigent people while fattening the wallets of commercial bail bondsmen.
However, the Maryland Court of Appeals changed this offense. The court concluded that indigent defendants are entitled to representation during initial hearings before a District Court Commissioner. This representation can assist the defendant during the hearings when the District Court Commissioners are considering the many factors like the defendant's family ties, employment status, financial resources, and length of residence in the community and in the State. Then these "pretrial" hearings before a District Court Commissioner will yield more arrestees being released on their own recognizances, thus resulting in fewer arrestees having the burden of interjecting non-refundable money in a skewed bail *201 system. Many states, like Maryland, have revamped their laws to circumvent the plague of bail as a business.
B. How Other States Have Tackled Bail Issues
There are several states that have followed Maryland's lead to protect due process rights, and to halt the discriminatory practices of the bail system. For example, according to Kentucky law, it shall be unlawful for any person to engage in the business of bail bondsman or to otherwise for compensation or other consideration: furnish bail, or funds or property to serve as bail, or make bonds or enter into undertakings as surety.
To replace the for-profit bail system in Kentucky, pretrial programs were created. Like most pretrial programs, the courts in Kentucky determine whether defendants are entitled to pretrial release or bail by factors, such as: flight risk, unlikely to appear, and likely to be a danger to others. If pretrial release is granted, the defendant is released on his or her own recognizance, or ordered to participate in a GPS monitoring device. However, unlike most pretrial programs, Kentucky's pretrial programs function under the position that "persons accused of a crime are innocent until proven guilty and deserve a reasonable opportunity to not be kept in jail until tried."
However, assistance is given to those defendants who are not granted pretrial release in Kentucky. Those who have bail imposed upon them are permitted, absent certain factors, a credit of one hundred dollars per day as payment toward the amount set for each day, or a portion of the day, that the defendant is to spend in jail before trial commences. When there has been sufficient credit accrued to satisfy the bail, the defendant is released on his or her own recognizance. Additionally, if the defendants can pay ten percent of the bail amount, in cash or by property bond, the bail amount is returned to the defendant as long as they are not charged with failure to appear.
*202 Illinois, another state that has taken the fight to the bail bonds industry, passed its Code of Criminal Procedure in 1963. This legislature quashed the commercial bail bond industry in Illinois. Former Attorney General, Richard Daley, bashed the bail system as "inefficient, detrimental to the rights of defendants and a risk to the public welfare." Illinois still has a bail system, just not a commercial bail system. Similar to Kentucky, once the defendant appears for his or her court date, the bail amount or property is released back to the defendant.
Since the 1970s, the courts in Oregon have acted as bail bondsmen, further nailing a coffin into the business of commercial bail in the their state. The argument, however, to allow bail bondsman back into the state is still ongoing. An Oregon sheriff penned an open letter claiming the return of commercial bail bondsmen to his state would be a disaster, because the benefits touted by the industry are misleading. He advised the public that bounty hunters commit crimes in pursuit of fugitives, misrepresent savings to the court by using their services, and are only concerned with making money. Opponents of the ban of commercial bail business believe commercial bail would be a great revenue stream for the state. But, John Haroldson, the District Attorney for Benson County, *203 Oregon, made the statement, "states use commercial bail bondsmen . . . [to] exploit the citizens through ‘these profit-driven enterprises."'
Banning commercial bail businesses is a start to corralling discrimination in the criminal court systems. But, the bail system in its entirety remains a revolving door of repeated violation of the U.S. Constitution. The framers of the U.S. Constitution intended to provide citizens with the right to not be deprived of life, liberty, or property, without due process of law. The bail system deprives citizens of these very rights.
C. Solutions Found Within the Texas Constitution
Many states have modeled their bill of rights after the Bill of Rights found in the U.S. Constitution. Texas has not only modeled its Bill of Rights like the United States, but it has created a more expansive and definitive version than the U.S. Constitution. Ironically, its expansive and definitive version protected the rights of only freemen, not slaves or Mexicans. But little did the framers of the Texas Constitution know, Texas's Bill of Rights had the solution to the bail system.
* * *
. . . Under Texas Bill of Rights, due course of law and other provisions may "never be suspended," but the infringed upon due process rights of defendants who have been detained paint a different picture.
* * *
From its inception, bail has been a method of payment for one's freedom. The Constitution affords a right to life, liberty, and the pursuit of happiness. The bail system deprives citizens of their life in that it discriminatorily interrupts their daily interactions with the world. The bail system deprives citizens of their liberty by holding citizens hostage until they pay a court ordered ransom for freedom. Lastly, the bail system disturbs citizens' pursuit of happiness by forcing citizens to undergo an auction to the most affordable slave master, the commercial bail bondsman, to receive their freedom paper. Despite laws on the books prohibiting slavery and human trafficking, we must continue to work towards the elimination of this form of modern-day slavery.
Although some states have introduced programs such as pretrial release or even banned commercial bondsmen and bounty hunting from their states, the bail system in its entirety should be held unconstitutional. Recent technological developments can solve many issues, but the larger system of bail, first, must be eliminated. Our country cannot continue to *217 allow this injustice to plague our judicial system; otherwise, instead of saving for our children's college funds, we will be compelled to have "Get out of jail for a percentage" funds. Is that what motivated our founding fathers?
Assistant Professor of Law (Criminal Law Clinic) at Thurgood Marshall School of Law.