Bail Bonding Supporters Push Back On Efforts To Curtail Cash Bail

Practice Remains Banned In Wisconsin Despite Periodic Attempts At Allowing It
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Coburn Dukehart/Wisconsin Center for Investigative Journalism

In many states, pretrial inmates may end up in heavy debt to bail bondsmen, even if they are ultimately acquitted. Wisconsin is one of a handful of states that have laws banning bail bonding, having abolished it in 1979.

Bail bonding is the practice of hiring a third-party bail bondsman who pledges to pay the full cash bond amount if the defendant fails to appear for court. The defendant is released after paying a non-refundable fee, usually 10 percent of the bond amount, to the bail bondsman. Even if the defendant is innocent and the charges get dropped, he or she does not get that money back.

In August, California became the most recent state to vote to eliminate cash bail. That move would have put the state's bail bond industry out of business starting in October 2019.

But the industry submitted enough signatures to require a statewide referendum before the law goes into effect. Those signatures were verified in January 2019, putting the new law on hold until the November 2020 referendum.

The American Bar Association, the National District Attorneys Association and other groups agree that commercial bail bonding adds to the inequities of pretrial cash bail, with defendants who cannot afford the bail forced to pay even more money to cover the cost of the commercial bail bond.

When asked his opinion on the bail bond system, New York City Comptroller Scott Stringer responded, "Commercial bail siphons money from thousands of low-income New Yorkers to the pockets of opportunistic bondsmen … They're costing taxpayers millions, and they're not making our city any safer."

Nevertheless, the bail-for-profit industry is a frequently used method in this country for securing freedom while awaiting trial. Wisconsin and a handful of other states, including Illinois, Kentucky and Oregon, currently prohibit bail bonding. Some activists would like to abolish cash bail altogether, but there is a strong profit motive from the bail bond industry to keep the practice alive.

To counter the claims of bail reform advocates, the AIA Bail Bond Surety Co. has circulated a report titled, "One Thing Missing from the Bail Reform Debate: The Truth."

In the report, AIA spokesperson Brian Nairin wrote, "Financially secured release is the MOST effective way to ensure a defendant's appearance in court … Release through the public sector pretrial program is one of the LEAST effective methods."

He wrote that, "The real victim of any crime is NOT the person accused of committing it. It is the person who the crime was committed against."

Leslie Dollen, a former public defender and former lecturer at the University of Wisconsin–Superior's legal studies program, said that assertion is "philosophically troubling" because "it rejects the constitutional presumption of innocence until proven otherwise."

She added, "I find it abhorrent that we are incarcerating some people just because they happen to be poor."

To beef up its lobbying efforts, the American Bail Coalition has aligned itself with the American Legislative Exchange Council, often called ALEC, an organization composed of lawmakers and corporations that draft state legislation to serve their members' interests.

ALEC has pressed for legislation throughout the country to protect and expand the bond industry and the surety companies that insure them. Since it began lobbying, the American Bail Coalition has supported about a dozen of ALEC's "model" bills, including a provision that enables some courts to make bond a requirement for early release from prison, Mother Jones magazine found.

In Wisconsin, there have been several attempts to bring bail bonding back. A pitch crept its way into the 2011-12 budget but was so vehemently opposed by then-Dane County Chief Judge William Foust and nine other Wisconsin chief judges that Gov. Scott Walker eliminated it by line-item veto. A later effort was made in the 2013-15 budget, but was again met with a veto by Walker.

Editor's note: This article incorrectly reported that Washington, D.C. does not allow commercial bail bonding. Although rarely used, bail bonding is allowed there.

Emily Hamer contributed to this story. Sheila Terman Cohen, who reported this story, is a donor to the nonprofit Wisconsin Center for Investigative Journalism. The Center collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

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