This guest post is published during the Western Society of Criminology conference, occurring in Honolulu from February 7-9. #WSC2019
By Christine S. Scott-Hayward, coauthor of Punishing Poverty: How Bail and Pretrial Detention Fuel Inequalities in the Criminal Justice System with Henry F. Fradella, forthcoming Fall 2019
Last month, the for-profit bail industry successfully placed California’s 2018 bail reform legislation (SB 10) on hold. Instead of going into effect as planned in October 2019, it will now appear on the 2020 ballot. As I have written elsewhere, proponents of bail reform criticized SB 10 because of how it relied on risk assessment tools and the amount of discretion it would give to judges to preventively detain defendants. However, the bail industry’s opposition was more self-serving; the act would abolish cash bail, which would effectively eliminate its business.
The American Bail Coalition, which sponsored Californians Against the Reckless Bail Scheme, the group responsible for collecting signatures for the petition to place the law on the ballot, claims to be dedicated to “protecting the constitutional right to bail.” However, it has consistently opposed bail reform efforts throughout the United States. As Henry F. Fradella and I discuss in our forthcoming book, Punishing Poverty, bail is a business, and not as some individual bail agents would have us believe, a small one. The bail industry earns an estimated $2.4 billion dollars annually, largely from bail premiums paid by the poor and vulnerable, and disproportionately by Black defendants and their families. It collects this money often using corrupt and predatory practices; indeed in late January, a lawsuit filed in Alameda County, California, accused the bail industry of violating antitrust law by keeping bail premiums high.
But it is not just the bail agencies that stand to lose money when cash bail ls eliminated. What is not well-known about the bail industry is that bail agents do not assume all of the risk when they pay a defendant’s bond. Instead, bail agencies are typically underwritten by multinational insurance companies. In exchange for underwriting the bonds, these companies charge bail agents 10-20% of the premiums that they charge to defendants and their families; and because of how bail contracts are written, insurance companies rarely have to pay out on their policies. As the ACLU explained in a report published last 2017, these insurance companies “have taken over our bail system.”
Given the amount of money insurance companies stand to lose when cash bail is abolished, it is not surprising that they fund opposition to bail reform. In California, the group funding the initiative effort to put SB 10 on the ballot was funded by a group of insurance companies: Triton Management Services, Financial Casualty & Surety and Lexington National Insurance. The financial interests of these insurance companies as well as the bail agencies they support mean that despite its claims to the contrary, the bail industry will continue to challenge any reform that impacts its bottom line.