A 2017 report published by Color of Change and the ACLU surveyed bond contracts nationwide, finding common trends across states and bond companies. On top of the ten percent premium, most companies tack on a range of surcharges and fees. In addition, relatives like Vanessa must indemnify the bond company by putting up collateral. This frequently entails handing over a title for a car or home. Bond contracts then allow the bondsman to sell or foreclose on the property if the accused person fails to appear in court. In other words, the bond company carries essentially no risk—shifting liability for forfeited bail onto the individual or family seeking the bond.

According to Peter Goldberg, a co-founder and senior fellow at Envision Freedom Fund (formerly the Brooklyn Community Bail Fund), the courts further insulate bondsmen from risk. Goldberg notes that bondsmen are often well-known to judges and court administrators, and when someone does skip town, the courts rarely demand bondsmen actually pay the bail. Nevertheless, bond companies will almost certainly cash in on the collateral. 

When a family cannot pay the premium up front, many bondsmen offer installment plans, often with exorbitant late fees or demands of additional collateral worth even more than the total bail amount. Because these plans are part of a private contract, they can take on a life of their own, haunting families long after the criminal case is resolved.

Take the story of Rafiq Shaw. A Baltimore jury acquitted Shaw of gun possession charges after deliberating for just thirty minutes, apparently unconvinced by the police’s fanciful tale. But to get out of jail before trial, Shaw had to post $100,000 bail.

Shaw’s family was able to scrape together $2000 of the $10,000 premium and agreed to pay $100 per week to cover the remainder, plus interest and fees. Shaw, who earns $10.15 an hour says, “I’ll be paying for a long time. Probably forever.” His mother and fiancée help, but with the bondsman calling Shaw’s mother every few weeks threatening garnishment, the payments have become a source of tension. “You see what bail does to a family?” asks Shaw.

In addition to extracting wealth, bond contracts often include provisions that literally sign away constitutional rights, allowing bail bonds agents to engage in surveillance that even the police are prohibited from undertaking without a warrant.

Under these terms, bondsmen can search people released on bond and their homes, place GPS monitors on their ankles and vehicles, demand access to personal information, among other invasive activities. The costs for this surveillance are then passed back to the “customer” as fees.

A woman wearing an ankle monitor by Jeff Pearcy, marked with CC BY-NC-ND 2.0.

Many contracts impose a laundry list of conditions that, when violated, allow bondsmen to detain their “customers” at will and return them to custody, all while pocketing the premium and fees paid.

A person can lose their freedom for something as minor as neglecting to immediately report a change in employment, or even things wholly out of their control, such as depreciation in the value of the collateral put up to secure the bond.

As criminal cases can drag on for years, the looming threat of being returned to jail makes it difficult for people to resist abuses. As an Orlando woman recounted, when she called her bondsman to report that she did not have the $250 payment she owed him, he summoned her to his office, locked the door behind her and demanded she take off her clothes. Feeling she had no choice, she complied with his advances; “He told me, ‘Either this or you’re going to get arrested.’”

When a bondsman or bounty hunter detains someone, it can be a violent and chaotic affair, as Dog the Bounty Hunter glamorized on A&E. Under many bond contracts, it is the person being detained who is liable for the bond agents’ recklessness.

Imagine a bounty hunter coming to detain you for missing a court date sideswipes your neighbor’s car, kicks in your door without a warrant, and then breaks your nose while you are handcuffed. You will be on the hook for the injuries to the bounty hunter’s knuckles, the damage to their car and to your neighbor’s car, not to mention your broken nose and front door.

A provision from a bail bond contract issued by AIA.

Thousands of people sign away their rights in bail bond contracts every day across the United States. Many don’t read the contracts closely because they are desperate to get the bond to the courthouse before their relative is booked into the county jail.  If they do review the contract, the terms are so laden with jargon that it may be unclear to them what they are signing. Even if they do understand, they sign because they have no other choice.

With the burden of cosigning bonds falling disproportionately on female relatives or partners, bondsmen deploy care-based language to convince reluctant co-signers and keep families on the hook. “It was kidnapping,” says Ronald Egana, recounting how a bondsman held him in handcuffs, demanding overdue payments and late penalties from his mother, “they saw the love my mom has for me and they used that to their advantage.”

With the burden of cosigning bonds falling disproportionately on female relatives or partners, bondsmen deploy care-based language to convince reluctant co-signers and keep families on the hook.

Courts and the insurance regulators tasked with overseeing the industry have largely taken a hands-off approach to bail bonds, ostensibly because they are considered private contracts—people choose to take out bail bonds and consent to their terms willingly. But this is illusory.

Contract law is premised on the notion that two parties come together in a ‘meeting of the minds’—a negotiation where both parties secure some benefit. But since all bondsmen demand essentially comparable terms, the mother trying to get a bail bond has no real choice and no negotiating power—she can’t walk away from the “bargain” and leave her child in jail. In such a captive and inelastic market, the forces that would normally give consumers a modicum of agency and weed out bad actors are absent. 

But since all bondsmen demand essentially comparable terms, the mother trying to get a bail bond has no real choice and no negotiating power—she can’t walk away from the “bargain” and leave her child in jail.

The emergence of a now multi-billion-dollar commercial bail bond industry was not the result of deliberate policy choices. Rather, the industry was born from a coincidence of history and the cruel ingenuity of two brothers running a saloon in Gold-Rush-Era San Francisco.

The original concept of bail was not a business opportunity. In Anglo-Saxon society, criminal law was largely a matter of restitution between private parties.

In all but the most serious cases, Anglo-Saxon courts imposed a fine that the offender paid to the victim. To ensure that the accused would not flee to avoid paying the penalty, courts would require a “surety”—typically a friend or family member of the accused—to supply the court with “bail” in the amount of the criminal penalty. Thus, the victim would be made whole, even if the accused skipped town. As Professor June Carbone has pointed out, this was “the last entirely rational application of bail.” 

The industry was born from a coincidence of history and the cruel ingenuity of two brothers running a saloon in Gold-Rush-Era San Francisco

As the use of corporal punishment expanded in England, so too did the incentive to flee. This development led to an expansion in the use of pre-trial detention, with courts denying bail altogether to most people accused of serious crimes.

The colonists, wary of England’s heavy-handed system of pre-trial detention, enshrined a right to bail in non-capital crimes in the founding constitutions of early states and in the Federal Judiciary Act of 1789.

In the early colonies, something closer to the original conception of bail might have remained the norm; someone known to the accused could guarantee their appearance in court by posting bail. But as settlers pushed west, social ties to the community thinned, which led many judges to worry that the accused would flee into the vast frontier. Accordingly, courts began setting higher bail.

At the same time, people held on bail were less likely to have local contacts who could post bail. In their father’s saloon on Kearny Street in San Francisco, two enterprising brothers capitalized on the moment and launched an industry now worth billions.

As the legend goes, in the 1890s, Peter and Thomas McDonough began loaning money as a favor to the lawyers who drank at their father’s saloon, who would then bail out their clients. When the clients appeared for their day in court, the lawyers would repay the loan.

When the McDonoughs discovered that the lawyers were charging their clients a fee for posting bail, the brothers too began to charge. By the time their father died, the brothers were raking in such profits underwriting bonds that they ripped out the bar and opened a bail bonds firm. The firm became notorious in San Francisco, known as “The Old Lady of Kearny Street,” and over the next fifty years, it made millionaires of Peter and Thomas. Others followed suit.

Kearny Street, San Francisco, California by Joris Cornelje, marked with CC BY-NC-ND 2.0.

Scholars have documented the troubling impacts of commercial bonds on the criminal legal system since at least the 1920s, as the frontier justifications for the practice eroded. But the industry persisted, and bail amounts continued to climb. This suggests that judges became accustomed to the role of bondsmen, setting bail not at an amount people could afford, but instead much higher, on the presumption that the accused would secure a commercial bond.

The industry continued to balloon over the 20th and 21st centuries, developing a symbiotic relationship with the expansion of racialized policing and imprisonment described by Professor Michelle Alexander in The New Jim Crow.

The commercial bond industry benefited from the growing churn of Black Americans flowing through American criminal courts, criminalized through black codes in the South, racialized policing in the North, and later even more aggressively criminalized through the war on drugs.

The commercial bond industry benefited from the growing churn of Black Americans flowing through American criminal courts, criminalized through black codes in the South, racialized policing in the North, and later even more aggressively criminalized through the war on drugs.

In turn, the industry itself supported policies that hyper-criminalized young Black men, all while advertising themselves in the community as providers of a public service, with slogans like that made famous by Aladdin Bail Bonds’ 1990s ads: “we get you out, we get you through it.”

The consequences of money bail and commercial bonds have become more salient as the Black Lives Matter movement and others have called attention to the profound injustices infecting every step of the criminal legal system.

In 2007, the American Bar Association called for the unqualified abolition of commercial bail bonds, reiterating the problems documented in study after study over the last century. The ABA highlights how the courts have systematically outsourced the profoundly consequential decision about who will be free and who will languish in jail to unaccountable private actors. After bail is set, private bondsmen decide whether to post bond, what fees to charge and what conditions to impose without oversight from the courts.

The system’s very design discriminates against the poor and working class who are less able to buy their freedom and more likely to be locked in a cycle of debt if they enter a long-term payment plan.

The bottom line is that the courts’ continued reliance on commercial bail bonds has been a major driver of mass incarceration. American jails experience a staggering 10,000,000 admissions each year, or more than 25,000 average admissions each day.

on a given day, about half a million people are languishing in jails before their day in court—a quarter of the nearly two million people incarcerated in America.

The vast majority are people legally presumed innocent but held before trial because they cannot afford bail. The steady churn of admissions and releases from custody means that, on a given day, about half a million people are languishing in jails before their day in court—a quarter of the nearly two million people incarcerated in America.

While these concerns alone would justify abolishing commercial bonds, perhaps even more convincing is the consistent evidence that the system is entirely unnecessary.

A 2013 study by the Pretrial Justice Institute compared the effectiveness of commercial bail bonds with unsecured bonds. With an unsecured bond, the accused individual promises that they will pay the bail if they flee and are rearrested, but without the obligation to put up collateral or pay a hefty premium up front. The study found that, across ten different counties in Colorado, unsecured bonds were just as effective in protecting public safety and ensuring people return to court.

A 2017 study by the Vera Institute of Justice returned similar results from New York City: eighty-eight percent of people returned to court after they were released on unsecured or partially secured bonds requiring little or no up-front payment, and very few were rearrested.

Meanwhile, charitable bail funds around the country report that, with supports like text reminders or transportation to court, their clients return at rates above ninety percent, even though the client doesn’t stand to lose any of their own money. These results are not limited to the last decade—when Washington, D.C. did away with money bail in the 1960s, ninety-four percent of people released pre-trial turned up for their court dates.

This makes sense: people have strong incentives to appear in court beyond forfeiting money bail—principally to fight and resolve their cases. On top of that, failure to appear can result in an arrest warrant being issued, new charges being brought, and the individual being jailed until their case is resolved.

What’s more, given the over-representation of poor people in the criminal legal system, the majority of people accused of crimes don’t have the resources to “flee” in any meaningful sense of the word—certainly not in the sense that judges worried about in the western territories of the mid-nineteenth century—even if they miss a court date. Meanwhile, people with the means to flee are also presumably less likely to be deterred by the financial consequences of skipping bail.  

The only other country in the world that relies on commercial bonds is the Philippines.

If commercial bail bonds are unnecessary to get people back to court and causing well-documented harms, one might wonder how they have maintained their place in our criminal legal system. Indeed, the only other country in the world that relies on commercial bonds is the Philippines. The industry itself has advanced differing and contradictory narratives to justify its role depending on the context. To its clientele, the industry presents itself as a source of support in a time of need—recall Aladdin’s “We get you out, we get you through it.”

“We Sell Freedom” beckons a neon sign in a bondsman’s window. By Jeremy Brooks, marked with CC-By-NC-2.0.

Meanwhile, to the broader public the industry traffics in fear mongering to build opposition to criminal justice reforms, casting their clientele as dangerous criminals who’ve brought their suffering upon themselves.

A recent and particularly grotesque example is a cheaply produced ad released by the New York State Bail Bondsman Association. Set to the theme music of “The Purge”—a series of dystopian horror flicks—the ad features a montage of security camera footage of mostly black men committing crimes, escalating into images of dystopian rioting lifted from Hollywood films. Interspersed are warnings that “crime is at an all-time high” after New York State passed bail reforms (it wasn’t) and that a litany of crimes would have “no immediate consequences” (never mind the presumption of innocence).

Of course, the industry pandering to fear about crime committed by people released pre-trial is wholly disingenuous, given that the premise of bail bonds is to get people out of jail and bondsmen have no obligation to prevent people from re-offending. Indeed, as Memphis judge Lee V. Coffee explained to the New York Times, the financial pressures bondsmen exert “would actually encourage people to go out and commit more crimes.”

Among players within the criminal legal system, the industry markets itself as a class of skilled professionals, necessary to guarantee people show up to court. That’s a dubious claim given the high rates of voluntary appearance and considering the often-lax requirements to become a licensed bounty hunter. In North Carolina, for example, a twelve-hour course and an exam get you a badge and wide-ranging immunity to engage in all manner of dangerous and violent behavior. 

The courts cannot claim ignorance of the scholarship showing that commercial bonds are unnecessary and harmful. And they have the power to make them obsolete.  In most jurisdictions, judges could simply release people on recognizance without financial conditions, require unsecured bonds, or, at the very least, set bail at an amount that people can actually afford to pay directly.

It’s impossible to say with certainty why courts continue to systematically set bail so high that people have no choice but to secure a commercial bond.

A generous assessment might allow that a sort of bureaucratic inertia has taken hold. In Goldberg’s experience across New York State, judges, prosecutors and, he suspects, even some public defenders, are accustomed to viewing bondsmen as helpful facilitators of the criminal justice machinery—someone familiar to keep tabs on people facing charges. 

The courts cannot claim ignorance of the scholarship showing that commercial bonds are unnecessary and harmful. And they have the power to make them obsolete. 

Another explanation is that courts use the commercial bond system to punish people before they are found guilty. According to Maureen Hanlon, a civil rights attorney at ArchCity Defenders, when a charitable bail fund began paying bail up to $5000 in St. Louis County, some judges responded by setting bail just above that threshold. In effect, the judge prohibits people from getting assistance from a non-profit and forces them instead to get help from a commercial bondsman, who will extract a ten percent premium. “Obviously, the court doesn’t believe a certain amount of money is required to get the person to come back to court,” says Hanlon, “they want the person to be punished somehow.”

In the ugliest scenario, courts themselves are on the take. In the 1990s, the bail bonds industry successfully lobbied New Orleans lawmakers to impose a two percent tax to be applied to all bail bonds, which was then divided between the budgets of judges, prosecutors, public defenders, and the sheriff who ran the jail. Under this scheme, not only were judges incentivized to set excessive bail, but every actor in the system had a stake in preserving the commercial bond system. The scheme ended only after advocates brought a federal lawsuit.

Whatever the explanation, criminal courts are actively facilitating a system of wealth extraction from poor people to the benefit of a private industry. And because the public broadly perceives judges to be arbiters of fairness and justice, their complicity serves to legitimate the commercial bond system.

Because the public broadly perceives judges to be arbiters of fairness and justice, their complicity serves to legitimate the commercial bond system.

Meanwhile, even judges who bemoan the system’s abuses frame themselves as powerless to change it. “It’s a consumer protection issue,” according to Memphis’ Judge Coffee, apparently disregarding that he and other judges typically have discretion in setting bail in the first place. 

State lawmakers too could do away with commercial bail bonds—a handful of states have done so—but corporate consolidation of the industry has generated powerful resistance.

Walking the streets around a courthouse, bail bonds appear to be a local affair dominated by mom-and-pop shops. But bonds issued in storefronts are backed by surety companies.

Sureties are a common form of insurance used across many industries, which essentially serve to guarantee a contract between two parties. For example, “licensed and bonded” contractors are backed by a surety that guarantees a customer will be made whole if the contractor walks away before putting the shingles on the roof.

In the bail context, surety companies guarantee the promise made by the mom-and-pop shops to the court. So, if the accused individual flees, the surety guarantees that the court will be paid the bail. Mom-and-pop shops typically pay the surety about ten percent of their premium for this re-insurance, or about one percent of the total bail amount.

When Vanessa paid the bondsman $1500, the surety received $150 of that. According to the 2017 Color of Change and ACLU investigation, there are around thirty surety companies that underwrite the bonds issued by around 25,000 nominally independent commercial bond purveyors. And an even smaller group of financial giants owns many of these surety companies.

Ultimately, nine financial and insurance giants underwrite the vast majority of the approximately $14 billion in bail bonds in America each year—and reap the profits.

Some of these insurers are multinationals, including Tokio Marine, a $35 billion insurance company traded in Tokyo, and the Canadian giant Fairfax Holdings, worth more than $12 billion. R & Q, a holding company registered in Bermuda, controls Accredited Surety, another major player in the American bail bonds market.

In addition to the multi-nationals, there are a handful of domestic insurers with a large stake in the bail insurance market. These include AIA holdings, also known as Allegheny Casualty Company; Bankers Surety, a Florida company that also offers flood and other coverage; American Surety Company; Financial Casualty and Surety; Roche Surety; and Lexington National, a major insurer in Maryland.  

In 2012, the private equity firm Endeavor bought a controlling share in Aladdin Bail Bonds, the California chain and largest bail bonds company in the United States. Endeavor also owns the surety company, Seaview, which underwrites Aladdin’s bonds.

Two Endeavor executives sit on Aladdin’s board and according to a 2019 ACLU report, Seaview has paid out nearly $10 million in dividends to Endeavor over just three years. This common ownership structure reveals how, at least in the case of Endeavor, the notion that bail bonds and sureties are a form of insurance and reinsurance is an illusion—all the players in the chain are controlled by one actor.

Endeavor’s equity includes millions of dollars of public employee pension funds, including from its home state of Oregon—one of the few states that has banned commercial bail bonds. In a cruel irony, the financial well-being of Oregon’s public servants is tied to the very exploitation of poor people the state rejected as contrary to its shared values.

An Aladdin Bail Bonds storefront. By CA Dept. of Insurance, marked with CC BY-NC-ND 2.0.

The corporate law regime under which the sureties operate is unconcerned with the industry’s abuses. Corporate law is premised on the concept of share-holder primacy, which posits that corporate boards and managers should operate with one aim: to maximize profits.

The impact on other stakeholders—like the families and communities exploited by bail bondsmen—are of no interest to this area of law. Indeed, a CEO who took steps to make his business less exploitative (and thus less profitable) would likely have to defend those efforts in terms of maintaining long-term profits—common humanity is no justification. 

Corporate law’s single-minded focus on profit has incentivized the relatively small group of surety corporations to engineer the bail bonds industry to become one of their safest revenue streams, at the expense of poor and Black and Brown communities.

They have deployed three parallel strategies to do so. First, the corporate sureties structure the market by fixing prices, limiting competition, and driving profits up the ladder, while pushing costs and risk down the ladder, ultimately onto some of the most vulnerable poor families in the nation. Second, the industry spends millions in lobbying to secure favorable legislation and obstruct criminal justice reforms. Third, and relatedly, the industry engages in regulatory capture: a phenomenon in which the industry that is to be regulated successfully lobbies for regulations that merely serve to benefit the industry, at the expense of other stakeholders and the public welfare. 

The corporate sureties who dominate the market have exploited bail bonds’ status as a form of insurance to fix prices. For all types of insurance—whether auto, renters, or bail bonds—insurers file applications proposing a premium rate with the state insurance agency. As laid out in an ongoing federal lawsuit, the corporate sureties have colluded to file the same ten percent premium rate. Once the state insurance agency adopts the ten percent rate, in all states except California, it would be “unlawful rebating” for a commercial bondsman to try to compete for customers by charging, say, a five percent premium. But corporate domination of the industry goes beyond locking out competition.

Before underwriting bonds, sureties demand that the mom-and-pop bondsmen guarantee that they (and not the surety) will be responsible for any forfeitures to the court if a “customer” flees. And remember, under the terms of most contracts, the risk is passed down further to the individual or family member requesting the bond. This structure means the sureties almost never pay when someone skips bail.

As of 2018, AIA, one of the largest sureties, underwriting more than $700 million a year in bonds, had never paid a cent to a courthouse for forfeited bail in its 107 year history. As an added layer of protection, sureties require that storefront bondsmen pay an additional ten percent into a “build-up fund” held by the surety. In effect, even if a bondsman goes bankrupt because they can’t cover the bail owed to the court, the surety can fulfill its obligation without dipping into its own capital.

Although surety backing doesn’t appear to provide storefront bondsmen much security, almost every state requires them to carry this form of insurance and, according to the National Consumer Law Center, the surety industry itself has actively pushed state legislatures to adopt these requirements. 

The requirement that commercial bondsmen carry surety insurance was just one victory for the corporate sureties’ powerful lobbying apparatus. The surety companies speak with a unified voice through the American Bail Coalition (ABC). The Coalition emerged in the early 1990s, when states were increasingly turning to government-funded pretrial services agencies and finding that most people returned to court without financial conditions. Worried that courts and legislators might soon realize that commercial bonds were obsolete and harmful, ABC began shoveling money into political campaigns and lobbying for bills that would secure their future.

According to a report by the non-partisan National Institute on Money in Politics, between 2009 and 2017, the bail industry, led by ABC, spent $6.4 million lobbying state lawmakers, not including additional spending by the large insurers behind the sureties. 

Worried that courts and legislators might soon realize that commercial bonds were obsolete and harmful, ABC began shoveling money into political campaigns and lobbying for bills that would secure their future.

ABC’s investments have paid off. The non-profit Justice Policy Institute uncovered hefty donations to lawmakers who sponsored legislation that effectively gutted the budgets of pretrial services agencies in states like Florida and North Carolina. In Texas, two state lawmakers who sponsored legislation restricting the use of alternatives to cash bail received more than $100,000 from 2002 to 2011. ABC spent more than $700,000 in state races across California over the same period.

The industry has strengthened its political muscle by partnering with the American Legislative Exchange Council (ALEC)—an influential pro-privatization lobby. Since the mid-1990s, ABC leaders have occupied influential positions within ALEC and together they have drafted numerous model bills expanding the role of commercial bail bonds while limiting oversight.

ALEC’s model bills also aim to limit eligibility for pre-trial release and prevent alternative models from taking hold. For example, ALEC’s “Citizen’s Right to Know Act” imposes onerous reporting requirements on pre-trial services agencies under the threat of defunding—a subtle but effective tool to hobble these public agencies that “compete” with commercial bondsmen. 

ALEC and ABC’s combined efforts have reshaped America’s criminal legal system in measurable ways. In 1994, the year they joined forces, the number of people released on their own recognizance had peaked at forty one percent nationwide. Over the next twelve years, that number dropped to just twenty eight percent.

Meanwhile, the number of people charged with felonies released on commercial bonds doubled from twenty one percent to forty two percent. Industry lobbying has also yielded an increase in the average bail amount set by judges. While the average felony bail is now around $10,000, the Federal Reserve has found that nearly half of Americans would struggle to cover an unexpected expense of $400. As a result, more people are jailed pre-trial or enter exploitative monthly payment plans with bondsmen.

As the movement calling for an end to mass incarceration has grown more powerful, the industry lobby as not gone down quietly. When advocates challenged bail systems in Georgia and Texas, which jailed people simply because they were too poor to pay, the industry enlisted former Solicitor General Paul Clement to intervene on their behalf. In an amicus brief to the Eleventh Circuit Court of Appeals, Clement deployed soaring rhetoric, casting commercial bondsman as legitimate guarantors of “a liberty-promising institution as old as the republic.”

In a surreal partnership, Dog the Bounty Hunter and his wife Beth Chapman offered Clement a public relations boost at the oral argument, telling reporters outside the courthouse that the litigation was “an all-out assault by the criminal lobby to change a 200 year old practice” and the advocates are nothing more than “social justice lackeys [whose] only goal is to make it easier for the bad guys to get out of jail with no repercussion and no deterrent.”  

Charitable bail funds have also been a target of the industry’s lobbying. Bail funds, like Goldberg’s Envision Freedom, have sprung up around the country. The concept is simple: these organizations collect donations and then post bail for people held pretrial, without collateral or any other financial conditions.

Unlike commercial bondsmen however, charitable bail funds are often subject to intense regulatory scrutiny—“we had a microscope on us all the time,” says Goldberg. Not only must charitable funds register their staff as bond agents and carry their own surety insurance, in many places, they must also comply with complex record-keeping and reporting requirements, arcane tax rules, and other regulations. All this despite the fact that charitable funds are actually paying the bail to the court with their own funds—unlike commercial bondsmen, who merely promise to pay if their “customer” flees. 

These hoops for charities to jump through are often put in place at the behest of the commercial bond industry.  For example, last year, Texas enacted legislation requiring charitable bail funds to register and file paperwork each month with the county sheriff who has discretion to suspend or even terminate a charitable fund’s operation in the county over clerical errors. This legislation had been watered down after democratic legislators balked—the original proposal would have banned charitable bail funds outright. 

Beyond lobbying to derail reforms, the industry also works to co-opt them. According to Amanda Woog, Executive Director of the Texas Fair Defense Project, “one troubling trend is the bail bonds industry bending its talking points and its business model to conform to reform efforts, whether proposing to run pre-trial services agencies, act as probation officers, or some other ‘alternative to incarceration.’” Woog pointed to Hays County, Texas, southwest of Austin, where officials had laid the groundwork to establish a pre-trial services agency tasked with reducing jail populations through diversion to services or release on unsecured bond.

In response, commercial bail bondsman submitted a proposal: they would run the agency. Under the scheme, bondsmen would “supervise” people released on unsecured bond, the county would extract a fee from those released, and “reimburse” the bondsmen for their supervision. For Woog, it’s transparent that this is “just a way for them to continue this model of profiteering off the misery of the system.”

this is “just a way for them to continue this model of profiteering off the misery of the system.”

A less visible but extremely consequential way the industry exerts its power is by shaping what limited regulations exist and stifling enforcement. Bail bonds are regulated under obscure provisions of state insurance code, which generate little public interest and are therefore more susceptible to industry capture.

A recent article in the Columbia Law Review details North Carolina’s captured bail bonds regulations. To become a licensed bail bondsman, an individual must serve as an apprentice for a year under a currently licensed bondsman and get that bondsman’s sign off. Effectively, this requirement closes the market and allows the state’s bondsmen to exclude newcomers.

But for those in the closed club, the code is generous. For example, bail bondsmen are never required to refund a premium, even if charges are dropped or the judge lowers the bail amount. The code also cuts off avenues for people accused of crimes and their families to challenge the contracts they sign. Normally, the law allows a party to void a contract signed under duress. Not so for North Carolinians bailing a loved one out of jail.

Equally if not more important is what is missing from the regulations: beyond the licensure requirement, the code is devoid of any meaningful rules or oversight. Where limited consumer protections exist, enforcement is often anemic. Insurance regulators may lack a sophisticated understanding of bail bonds, their role in the criminal legal system, and the consequences of non-enforcement.

While working as a Policy Advocate at Brooklyn Defender Services, Jared Chausow pleaded with New York’s Department of Financial Services to investigate a bondsman who had charged a client’s mother an “apprehension fee” of thousands of dollars. The bondsman had arrested her son as he was being discharged from a psychiatric hospital where he had been involuntarily committed due to a mental health crisis. The bondsman claimed he was being detained because he had missed “check-ins” with the bondsman—although clearly, they knew where he was. Chausow laid out to a DFS official all the ways the fees and the original contract appeared to violate New York’s consumer protection laws and insurance regulations, and also explained the broader power dynamics involved. The official’s response? “Look, it’s contract law. It’s between her and the bail bonds agent.” 

“Amid this really serious power imbalance where it could not be any more ripe for abuse, people are signing contracts under duress. The illegal fees are standard practice. Illegal premiums are standard practice. Abuse of bail forfeiture and exoneration is standard practice. And there were almost no violations. Ever.”

When Chausow dug deeper, he discovered that, according to publicly available records, DFS had issued a total of two violations against all the bondsmen operating in the state in its history. “Amid this really serious power imbalance where it could not be any more ripe for abuse, people are signing contracts under duress. The illegal fees are standard practice. Illegal premiums are standard practice. Abuse of bail forfeiture and exoneration is standard practice. And there were almost no violations. Ever.” A more sympathetic higher-up at DFS told Chausow that the incident he reported was likely illegal, but the agency “didn’t have the enforcement powers” to do anything about it. 

“What’s the point of having consumer protection laws and regulations; what’s the point of regulators existing if they don’t do anything?” asks Chausow.

Perhaps the answer is in the question. Psychologist Tom Tyler has documented how the mere existence of procedures makes people more likely to perceive a system as legitimate, even when that system is producing unjust outcomes. To anyone who looks critically at the system, it’s clear that the main purpose of commercial bail bonds is to extract wealth from poor people.

Such an injustice wouldn’t be tolerated if the courts themselves weren’t facilitating the scheme, and in the process, legitimating the outcomes it produces. And when bondsmen abuse their “customers” in ways that disturb even the judges setting bail?

Like Judge Coffee says, “It’s a consumer protection issue,” and there’s a complaint process for that. That sounds like accountability, but when a mother files a complaint, the regulators tell her they “lack enforcement power” and “it’s contract law.” And if she challenges the bond under contract law? A court is likely to agree with the bondsman that she consented to the terms and must hold up her end of the “bargain.” Even worse, what if she lives in a state like North Carolina where the insurance code prohibits challenging a bail bond under contract law altogether? 

That sounds like accountability, but when a mother files a complaint, the regulators tell her they “lack enforcement power” and “it’s contract law.”

Each powerful institution that interacts with the commercial bonds industry points to another as the guarantor of fairness in the system, thereby justifying their own complicity. Yet, at every turn, families are offered empty processes that provide a veneer of fairness, but almost never actually change outcomes.

While it may be true that the law, insurance regulations, courts and regulators are “not doing anything” for poor families, they are in fact doing a great deal to legitimate the status quo and provide cover for a multi-billion-dollar industry.

As part of a growing movement for racial justice, families harmed by the commercial bonds industry have taken their rage to the streets. They have brought their pain to the halls of state houses and courtrooms and won change.

Still, there is reason for cautious optimism. As part of a growing movement for racial justice, families harmed by the commercial bonds industry have taken their rage to the streets. They have brought their pain to the halls of state houses and courtrooms and won change. In New York, despite recent rollbacks, someone like Adrian could no longer be held on bail thanks to hard-fought reforms.

The movement has forced policymakers, courts, and regulators to face the very real injustice families have endured, and to answer for the farcical procedures they have erected. Piercing the veil of legitimacy that has maintained the system may start the clock ticking on its demise.

From The [F]law:

• Connie Cheng, From Walls to Shackles: The Big Business of Electronically Monitoring Immigrants
  
• Tala Alfoqaha, Marketplace of Violence: Bidding for Brutality Among Minnesota’s Police
• Adriel Williams, The Costs of Carceral Communications: How a Prison Telecommunications Company Exploits Incarcerated People and Their Loved Ones
• Anna Bower, Shots Fired, and Profited On: Inside the Campaign against “ShotSpotter” in Chicago

From The Systemic Justice Journal:

• Austin Nielsen-Reagan, The Profitability of Inhumanity: How Corporate Power Gives Rise to Forced Labor in Privatized Immigration Detention
• Adira Levine, Can’t Get Back Up: The Growth and Toll of Private Probation