Money Bail Survives in California because of the Myths Perpetuated by the For-Profit Bail Industry


By the San Francisco Public Defender’s Office

Myth # 1: Most people who are in jail are there because they have been convicted of a crime. In California, 66 percent of people in county jails have not been convicted on the charges for which they are being held. Instead, they are there because they cannot afford to post bail. Even though people charged with crimes are presumed innocent by the U.S. Constitution, California taxpayers are paying $114 a day to incarcerate each one. Nationally, that totals $14 billion a year for pre-trial detention.

Myth #2: If people are kept in jail pre-trial, it is because they are too dangerous to be released. Bail has little to do with public safety. In fact, a primary purpose of bail, as it is used by the courts, is to pressure defendants into plea bargains. Faced with the possibility of being detained for months or years, and the risk of losing their job, housing, or child custody, many defendants plead guilty to a crime they might not have been convicted of if they went to trial. Many of those are then sentenced to “time served” or probation. So the person who one day is held on bail of hundreds of thousands of dollars could be freed by the court the next day, but with a criminal record that will make it hard for them to succeed in our society. And of course, anyone who can afford to pay the bail up front is released regardless of how “dangerous” they might be.

Myth #3: Money bail is set at the amount necessary to guarantee a defendant’s return to trial. California’s bail schedules are arbitrary and massively disproportionate to people’s ability to pay. Median bail in California is $50,000, among the highest in the nation. Meanwhile, the average person doesn’t have even $500 in savings. Approximately 97 percent of Californians who post bail are forced to use a bail agent. These defendants, with help from friends and family, pay bail agents about 10 percent of the bail set by the court, which is non-refundable and often paid on credit. Knowing this, judges set the court’s bail schedule at least 10 times higher than is necessary. This translates into a windfall for the bail industry, and massive debt to the families of the accused.

Myth #4: Uniform bail schedules eliminate bias in pretrial release decisions. Bail schedules were originally proposed as a way to prevent bias in initial release decisions. But many years since their implementation, bias is still rampant. According to a report issued by the Chief Justice of the California Supreme Court, 33.7 percent of African Americans and 38 percent of Latinos are released pretrial, compared with 48.9 percent of whites and 54.6 percent of Asians. According to a 2011 study, bail amounts for black men average 35 percent higher than those for white
men, even when controlling for seriousness of the offense.

Myth #5: If you show up for trial, or the charges against you are dropped, your bail is refunded. Approximately 97 percent of people who post bail bonds in this privatized system will never again see a penny of the money they pay for their freedom. Bail agents never refund anything — even if you show up for trial, even if you are acquitted, even if the charges against you are dropped the day after you pay the bail agent. And since many people must set up a payment plan, they and their loved ones will keep owing the bail agent for months or years.

Myth #6: People who don’t show up for trial are fleeing prosecution. Actually, most people who miss a court date do so for more mundane reasons. Some don’t have transportation, some can’t get off work, some have to care for a sick child or relative, some have illnesses that make it hard to remember appointments. In jurisdictions that have eliminated money bail, programs that remind people of court dates and assist with transportation have achieved show-up rates as high as places with onerous money bail systems.

Myth #7: Bail agents pursue people who skip bail and bring them back to custody. In spite of the media myth of the swashbuckling bounty hunter, in California, bail agents don’t spend much time pursuing no-shows. As the Chief Justice’s report says, “although it is the responsibility of the bail agent to locate the defendant, the county frequently bears the cost of bringing the individual back to jail. A bail bond agency must notify the county of the individual’s location, and law enforcement officers are responsible for returning the individual to jail.”

Myth #8: The bail industry assumes the risk of people not coming back to trial. In fact, bail agents assume almost no risk at all. Studies have shown their forfeiture rate is 1 percent or less, mostly because the industry has lobbied for regulations that make it very hard for the state to collect on forfeitures. So of the hundreds of millions of dollars the bail industry skims off of indigent Californians each year, it keeps more than 99 percent. That’s a level of profit of which most industries can only dream. And where does all that profit go? Well, a good bit of it goes to hiring lobbyists and PR firms to fight bail reform.

Myth #9: Money bail keeps us safe. Unnecessary jail stints lead to unemployment and poverty for the formerly incarcerated. It causes the break-up of families, homelessness, debt, derailing of one’s education, and shunning by potential employers and creditors. These are some of the root causes of crime. Keeping people out of jail and prison is one way of breaking this cycle.

Myth #10: There is no practical alternative to money bail. The U.S. and the Philippines are the only two countries with a for-profit money bail system. And even in this country, several jurisdictions have eliminated money bail with no significant increase in crime. Kentucky abolished commercial bail in 1976. Washington D.C. instituted similar reforms in 1992 and New Jersey and New Mexico followed in 2014. And even in U.S. Federal Court, cash bail is rare. Courts have a wide range of tools for pretrial supervision less destructive than money bail. California need not be held hostage to the for-profit bail industry.

It’s time to end money bail in California

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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