This past week, I was sent a YouTube video from one of our agents. The video was titled, “The Bail Bonds Industry is Horrible.” (http://www.youtube.com/watch?v=cGKmXpEP1pc&sns=em). The video consisted of an interview with one of Equal Justice Under Law’s founders, Alec Karakatsanis. In the video, Mr. Karakatsanis doesn’t beat around the bush when it comes to showing his complete hatred and distaste for the commercial bail industry. He delivers insult after insult about how corrupt, greedy and evil the entire bail industry is, from the independent agent on the street to what he calls the ultra-rich insurance companies. As I watched this video, I couldn’t help but form the opinion that while this individual obviously hates the concept of bail, that he doesn’t fully understand how it works at all. Being that is the case, I thought I would dedicate this next blog post to educating Mr. Karakatsanis about the industry he hates so much and the 17,000 men and women that call themselves bail agents.
As part of this educational process and because I know that the facts are important to Mr. Karakatsanis, I thought I would spend some time clarifying a lot of the misinformation that he shared in the interview and provide him with some real facts about our industry and the criminal justice system.
First, Mr. Karakatsanis starts off his discussion explaining how the bail process works. Unfortunately, in his attempt to oversimplify the process for his audience, he leaves out some very important facts. According to his explanation, when people are arrested and accused of a crime, the court immediately goes after the defendant’s wallet and tries to extort money from them. In his words, they say, “You are eligible for release, but you have to give us some money first.” While it is in Mr. Karakatsanis’ best interest to have people believe that the pretrial release process is merely a cold hard cash shakedown, it absolutely isn’t. What he is not sharing is that the criminal justice system has multiple pretrial release mechanisms available from which to choose from. While financial conditions are part of some of these release options, there are also several that do not involve financial conditions. In fact, according to the DOJ, the majority of people across the country that are arrested are actually released without any financial conditions. Recent statistics show that only 48% of defendants accused of a felony and 33% of defendants accused of a misdemeanor are released with financial conditions. And only a portion of those financial releases are made with a surety bond or a commercial bail bond.
The next point I would like to educate Mr. Karakatsanis on is in regards to how release decisions are made. In the interview, he mentions that courts are making release decisions based on some sort of arbitrary chart (I think he means bail schedule). He also appears to unknowingly insult judges by saying that when they set a bail amount that they are just picking some number out of the air without any contemplation or thoughtful consideration at all. As he puts it, “[these releases] are based on a chart that is based purely on the offense that the person has been charged with and in other places the judge just picks some number, some amount of money and that is happening without any inquiry into whether that person can afford that amount of money.”
What it is important to understand is that while Mr. Karakatsanis might think that bail schedules are just simply arbitrary charts, they are not. They are carefully determined bail amounts that are set by a panel of judges (annually or semi-annually) who have the vast experience, knowledge and understanding of what level to set each offense. Bail schedules in fact have the potential to be fairer because they take out any chance of racial or socioeconomic bias that might exist with any individual person. Bail schedules were also developed to…get this…SPEED UP the process of releasing defendants. By having predetermined amounts of bail set, defendants could quickly and easily be released without having to wait for a judge. This is something that I would think Mr. Karakatsanis would fully appreciate since his group’s concern appears to be focused on releasing every defendant as fast as possible. And one more important thing to understand about bail schedules; if the bail amount on the schedule is not appropriate in the eyes of the defendant they have a quick and easy remedy available to them. They have the opportunity to go before a judge within 48 hours to have their bail amount reduced based on their specific criminal history or financial circumstances. This important judicial remedy is something that the bail industry not only supports, but also fully appreciates as it helps many clients in attaining a more reasonable release.
Beyond bail schedules, in my opinion, it appears that Mr. Karakatsanis doesn’t fully understand how judges set bail. Before you can understand how this process works, you must first understand that judges are NOT just arbitrarily coming up with a bail amount. They are also NOT purposely setting bail to discriminate against the poor. They are trying to dispense justice in the most fair and balanced way they can with the tools that are available to them. In order to do that, they look at a number of variables to help them make their determination. They consider things like prior charges, criminal history, community ties, previous failures to appear and believe it or not, ability to pay. So to point the finger at judges as the evil purveyors of some kind of financial scheme within the court system and label them as intentionally unfair, in my opinion, is foolish.
In every interview with Mr. Karakatsanis that I have watched (including this one), he always ends up talking about the Utopian Washington D.C. Federal Bail System. The federal system is very different from those that exist at the state level, and if he wants a true D.C. style criminal justice system to exist across the country, he is going to need a bigger wallet and a bigger jail. What he never seems to mention in any of his anti-bail speeches is the exorbitant price tag that comes with it. Based on the latest figures, the Washington D.C. system costs almost $65 million a year to manage only a small number of defendants as compared to most metropolitan cities. Also, another important but never mentioned tidbit is that while he touts the D.C. system as the ideal model for release, he is unknowingly supporting the one criminal justice model that detains more defendants than any other model around. According to federal statistics, the D.C. pretrial system detains almost 70% of defendants. And when you are detained in the federal system you have NO other options or opportunities for release. And when people are detained for whatever reason (wealth, guilt, etc.) they are all facing the same challenges: forced guilty pleas, loss of a job, disconnection from family, inability to properly prepare for defense, and so on.. All the things that the so called evil bail industry is being blamed for…yet in this instance…they are being supported by the folks at Equal Justice Under Law and the federal system.
Another sign that the D.C. model isn’t the Utopia it is being marketed to be is the recent resignation of D.C’s Police Chief. According to media reports, Washington D.C.’s Police Chief Cathy Lanier resigned claiming that she was “frustrated by a system that she said allows repeat violent offenders back on the street time after time.” I don’t know about you, but that seems like a pretty powerful criticism by a pretty informed individual regarding the D.C. pretrial system.
As the interview continues, Mr. Karakatsanis goes on to explain how the bail industry is able to thrive and continue its purposeful mission of exploiting the poor because it is able to buy and corrupt local governments giving itself an unfair advantage. In his words, “Because they [bail insurance companies] control so many state legislatures and control so many local government systems that they typically pass rules to protect them from having to pay at all…even if you don’t show up at all…they are virtually risking nothing”
Does anyone really think that the big bad commercial bail industry is so powerful that they are seriously able to own and “control” local government systems? According to a report put out by the Justice Policy Institute (not a friend of the bail industry by any stretch of the imagination), the commercial bail industry has spent $3.1 Million over an 11 year period influencing legislatures across the country. For purposes of this article, I will go ahead and give them the benefit of the doubt and say that the $3.1 Million number is accurate. That being said, I would also say, let’s look a little deeper into that number and see the reality of what that means. $3.1 Million over 11 years is $281,818 a year or $23,484 a month. Divide that among 46 states that allow commercial bail, and that comes to $510 a month that the big bad bail bond industry is spending to influence law makers and local governments. I really don’t think the bail industry is controlling anyone or anything with a $510 a month lobbying budget per state. And by the way, just for the record, The VERA Institute has an annual budget of over $60 Million and the Pretrial Justice Institute has an annual budget of over $1 Million. Based on those numbers, who do you think is spending more money trying to influence others. Let me help you with that one…it is not the bail industry.
Money aside, the real lesson that Mr. Karakatsanis needs to understand is that legislators don’t make bail decisions. Judges do. For someone to think that judges are using financially secured bail because of the influence that the bail agents and insurance companies have over them is both myopic and a real overstretch. I am of the belief that judges are making release decisions based on their experience and knowledge. They are making decisions on what is going to best protect the public and ensure the defendant’s return to court. The fact that they decide to financially secure a release with a surety bond is not a decision based on influence, but rather a decision based on something called accountability and effectiveness. Something every third party study done on the bail industry proves and supports.
Before I conclude, I thought I would provide one more piece of educational information for Mr. Karakatsanis about the bail industry. In showing his extreme displeasure for the bail industry, he uses words to describe the contracts used in the bail transaction as “onerous” and “exploitive.” In his words, “They trap these people in these incredibly onerous exploitative contracts…give us 5% of the money and then you agree to pay us the highest allowable interest rate under law for years.”
First, bail agents don’t charge interest on bail premium. Only a couple states even allow interest to be charged. So to make that blanket statement and accusation in such a broad way is not a fair or true dissemination of the facts. Second, bail contracts are not onerous and exploitative. Bail contracts are designed to articulate and bind the promise being made by the defendant to appear in court and the bail agent’s understanding of the financial responsibility they are taking to ensure the defendant’s appearance. In order to help the bail agent carry out their job, the contract typically gives the bail agent the flexibility and authority they need to ensure a defendant’s appearance in court and go get the defendant and remand them back into custody should they fail to appear. They are by no means exploitative nor onerous, but rather designed to protect the public and the court and ensure that those defendants that are released are accountable and live up to their obligations. That is why in almost every state where commercial bail exists these contracts are regulated, reviewed and approved by State Departments of Insurance, with one purpose in mind…to protect the public. So to say they are onerous and exploitative shows little knowledge of how the industry operates and how it is regulated.
Please know that there is much more I would like to include in this blog, but I have already probably gone on too long. But I invite you all to watch the interview in its entirety and to please provide Mr. Karakatsanis with your feedback. I think he is in need of as much factual information as he can get on the bail industry. Specifically, he is in need of information on how the industry doesn’t subjugate or discriminate against poor people or communities of color, but rather, the complete opposite. The bail industry serves as a valuable resource to help these types of individuals secure their release in the most responsible and accountable way possible. In a way that allows the justice system to work the way in which it was designed, to protect the public, and to ensure that the victim of any crime gets a chance at justice. Hopefully our collective efforts will serve to better inform and educate him on our industry so that he can better represent and explain the important role that we play in the criminal justice system.