Of Bail and Bondsmen

In my favorite Robert DeNiro movie, Midnight Run, DeNiro plays a bounty hunter attempting to bring a bail jumper from New York to L.A. for trial.

Entertaining but fanciful in many aspects, the movie embodies popular conceptions about the bail system: get arrested, pay a bail bondsman to get out of jail, have the bondsman come after you if you skip out.

It sounds very efficient, maybe even fair. But Maryland's bail system serves neither efficiency nor fairness. It exists primarily to make profits for bail bondsmen.

The bail system involves two distinct components: the practice of requiring bail as a condition of release before trial, and the bail bonds industry. Since persons charged with crimes are presumed innocent, allowing them to be free pending trial is consistent with that presumption. Bail functions as an incentive for defendants who are set free to show up for trial. They put up something of value that they get back when they come to court.

But it's easy to see that requiring bail discriminates against those without cash or property to post as collateral. Liberty before trial depends on sufficient wealth to post bail. That is, or ought to be, offensive to American sensibilities.

So into that breach stepped the American genius for making profits. For a fee, usually a small percentage of the required bail, private companies will post a "bond," a written guarantee to pay the bail if the accused person fails to show up in court.

As the New York Times pointed out in a 2008 article, the United States and the Philippines are the only two countries that give private enterprise a central role in their pre-trial release systems. And the bail bonds system has been, according to the Times, condemned by the American Bar Association and the National District Attorneys Association, not to mention outlawed in four states. But it has a firm foothold in Maryland.

What do bondsmen accomplish? Well, they allow more people of lesser means to get out of jail. But while they lessen the inherent discrimination of the bail system, they do not eliminate it. If bondsmen won't take a bail, or if the accused cannot afford even a small fee, the accused still stays in jail. And bondsmen take money from people who can least afford it and can't get it back. Under a true bail system, bail is an incentive to show up for trial. Under the bail bonds system, bail becomes a penalty for being arrested.

Bondsman will claim that they bear the risk of defendants who don't appear for court and the cost of tracking them down. But in reality the bondsman's risk is low. If a defendant skips court, a judge will issue an order "forfeiting" the bail, which triggers the right of the local prosecutor to take the bondsman to court and enforce his promise to pay. But in Maryland bondsmen can have the forfeiture "stricken" when the defendant is arrested. It doesn't matter what he is arrested for or whether the case is no longer feasible thanks to the delay in the trial. As long as the defendant is returned to custody for any reason the bondsman is released from responsibility.

In Midnight Run, not only was DeNiro looking for the bail jumper but so was the FBI. A Maryland bondsman would have just let the FBI do their work, because unlike the premise of the movie, no 5-day deadline exists that would cause the bondsman to lose his money.

The bail bonds system, in theory, transfers from government to private industry the decision of risk and the burden of capture. I can imagine a time, say in the old West, when perhaps this made sense. In the absence of photos and fingerprints, not to mention social security numbers, and without a professional and ubiquitous law enforcement system, bondsman might really have performed a function that the state could not have done as well.

But not anymore. With technology, information systems, and modern police forces, bondsmen can just wait for police to find or happen upon their no-shows for them. And while bondsmen can get more poor people out of jail, they gouge them with non-refundable fees. It's still a system of greater liberty and justice for the well-to-do.

The Times article states, without providing evidence, that the bail bonds industry "is remarkably effective at what it does." The evidence, of course, is critical to that claim. But more fundamentally, what does the industry do? It decides that some persons are worthy risks for release. And makes a profit on its judgment.

The state is already supposed to decide that risk. It serves neither logic nor justice to have a bondsman make a second judgment for profit. Unfortunately, the state makes bail decisions inconsistently and badly, fueling the perceived need for bail bond companies.

I'll talk about those bail decisions next time.