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It’s Not About the Money…It’s About the Influence

Tuesday, March 10, 2015

not the moneyYou don’t have to look very hard to find another public sector pretrial commentary on the ills of the for-profit commercial bail industry.   The key word they emphasize in their argument is “for-profit.”  They call bail bond agents “greedy” because they charge a fee for their services.  They say that money and profit is all that our industry cares about.  They say that people’s freedom shouldn’t have to hinge on an amount of money.  I could go on for hours quoting these pretrial pundits hatred of commercial bail, but instead I would rather focus on the issue that they have such a problem with…THE MONEY.  And because “THE MONEY” is the key issue that they are focused on, it tells me that public sector pretrial proponents don’t really understand the commercial bail industry or for that matter the purpose of pretrial release in general.

I will start off by saying this simple statement….that BAIL IS NOT ABOUT THE MONEY.  Anyone who thinks so is extremely myopic and not educated on the workings of the criminal justice system and the pretrial process.  Commercial bail is about accountability…a word that is not only essential to our criminal justice system, but a word that is very much lacking and has been misplaced in the public sector pretrial community.  

When someone is let out on a commercial bail bond, there is a financial transaction taking place…and yes, that transaction does involves “MONEY.”  But no matter what the public sector pretrial community wants to tell everyone, “MONEY” is not what commercial bail is all about.   That transaction is about “influence” and “accountability.”  And those are two things that the public sector pretrial community is not capable of providing.  Let me explain.  The bail transaction involves something called an indemnitor or a third party that is in essence vouching for the defendant and their reappearance in court.  This is someone who is not the defendant, but rather someone close to the defendant and knows them and their behaviors.  The willingness of an indemnitor to purchase a bail bond provides the bail agent with valuable insights and assurances into whether that person should be released and whether they will show up for court.  This simple thing is more accurate and reliable than any risk assessment questionnaire given by a public sector pretrial employee could ever be.  A bail agent knows that if an indemnitor is willing to vouch for a defendant’s re-appearance and that they are willing to put their name and reputation (and yes…some money) on a contract that guarantees it...that there is a very high likelihood that the defendant will show up.  There is also a very high likelihood that the defendant will stay out of trouble while out as well.  And studies done by the DOJ Bureau of Justice Statistics support this.

This third party contract (or bail bond agreement) directly ties the defendant/indemnitor, the bail agent and the court together into a financial agreement that hinges on the defendant’s appearance in court.  Additionally, this contract also has a powerful indirect effect.  This indirect effect is what makes bail so effective and what makes the public sector pretrial process so ineffective (which by the way, has been confirmed time after time in third party research studies done on the effectiveness of various forms of pretrial release).  In addition to the main parties of the bail bond agreement, every bail bond also  indirectly ties several other influential parties together.

These other parties include other family members of the defendant and indemnitor, the insurance company that backs the bail bond agent, the prosecutorial team, the defense team, the victim and their family, and law enforcement.  Each of these stakeholders has a vested interest in the performance of that defendant and each and every day they play a role, knowingly and unknowingly, that assures the defendant's appearance in court.  It is this circle of influence around each bond that makes commercial bail so effective.  It isn’t about the money, it is about the size and strength of the circle of influence that is created around each defendant when they pay “MONEY” for a commercial bail bond.

Public sector pretrial communities have no such circle of influence.  Why?  Because the public sector pretrial release process involves only two parties that have no influence or skin in the game…a public sector pretrial employee and a defendant who wants out of jail.  The pretrial services employee works an 8 hour shift with the usual lunch break and bathroom breaks and earns a paycheck.  And by the way, the paycheck is received every month at the same time for the same amount regardless of whether the defendants that are let out show up for court.  The other party to the public sector pretrial process is the defendant, who more than anything really wants to get out of jail.  By the way, this is the individual that is answering the risk assessment questions that the public sector pretrial employee is asking.   In a public sector pretrial release, neither party has skin in the game.  Neither party is or will be held accountable for not appearing in court.  Okay, you can say that the defendant does have a level of accountability and always has a vested interest in showing up for court, but if they know that they are being released without any financial accountability, without any real supervision or any real circle of influence around them, what is stopping them from not showing up?  The threat of a warrant being issued?  The threat of re-arrest?  Most defendants know that they will only have to pay the price for not showing up when they are caught again…in the meantime, they have carte blanche to continue their bad behavior.  Without the money, there is no sense of accountability being reinforced and driving the behavior of the defendant…without the money, there is no sense of third party influence driving the defendant and those around him to assure appearance in court.  Without the money, the system underperforms at a greater cost to the taxpayer and community at large.

So the next time someone in the public sector pretrial community says that we should abolish the evil for-profit bail bond industry think about what that really means.  Abolish accountability? Abolish responsibility?  Abolish effectiveness?  It is time that the pretrial conversation stops focusing on the “MONEY” and starts focusing on how to best leverage the “influence” and effectiveness that it provides to improve accountability and outcomes in the criminal justice system.

Posted by: Eric Granof

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