The nation’s bail bonds industry is a $2 billion-plus enterprise—an enterprise that in many respects borders on being criminal. The wealth of the industry is, and has historically been, built on the backs of poor people (most often people of color) charged with a crime. The seedy bail industry secures a charged individual’s bond through a typical 10 percent fee—in other words, an individual with a $100,000 bail must give the bail bondsperson $10,000 to secure their release from jail. The bail bondsman’s fee is paid, either through upfront payment or through an installment payment plan. Failure to pay up will result in the bond being surrendered and individual going back into custody.
People charged with a crime who have resources do not necessarily need a bail bondsperson. They can simply post a cash bail which is returned to them after they appear in court. If they decide it makes better financial sense, they can pay the bond fee. People without financial resources can often pay neither and are forced to sit in jail awaiting resolution of their case. The economic equation is simple: wealth is rewarded while poverty is penalized.
Demands for bail reform have escalated over the past decade, leading more than two dozen states to implement some measures of bail reform. In an August 30, 2019 CNN report, Collette Richards and Drew Griffith discussed the underpinnings of this reform effort:
“The story of bail reform is as messy as it is laborious. It’s a long road of continuous push and pull between stakeholders. Even among reformers, there’s disagreement over how best to do it. A popular remedy is using some sort of computerized ‘risk assessment’ tool that evaluates the likelihood a person would show up for court based on criteria such as age, past failures to appear for court and criminal convictions. However, some scholars and civil rights activists, including the ACLU, oppose such tools, saying they are flawed and often racially biased.”
Bail Bond Industry Fights Reform
As the reformers struggle through the “messy” process of bail reform, the CNN report stated that the well-organized bail bond industry “has derailed, stalled or killed reform efforts in at least nine states, which combined cover more than one third of the country’s population.”
The amount of bail is set after arrest by a judge or a magistrate. At least one state, Louisiana, has a law that requires that 1.8 percent of a commercial bail bond purchased by a criminal defendant must be placed in a Judicial Expense Fund. Revenues from this fund are used to pay judicial expenses such as office supplies, travel expenses, and court personnel salaries (law clerks, secretaries, etc.).
Bail Bond Fees Support Administration Costs of Courts
There are thirteen judges in the Orleans Parish Criminal District Court. Each judge normally has roughly $250,000 in annual expenses—20 to 25 percent of which comes from the Judicial Expense Fund. Once again the economic equation is simple: the higher the bail, the more revenue in the Judicial Defense Fund to make for better travel arrangements (and associated expenses like meals and hotel accommodations) and the hiring of a friend’s son or daughter to either a lucrative law clerk or secretary position.
More often than not, poor people of color pick up the tab for these judicial expenses through higher bail amounts.
Deeply rooted in English common law, dating as far back as 1610, is the principle that judges cannot be paid from the fines they collect.
Appeals Court Holds Sharing Bail Fees with Courts Violates Due Process
On August 29, 2019, the Fifth Circuit Court of Appeals in Caliste v. Cantrell had an opportunity to apply this principle to New Orleans’ Judicial Expense Fund and bail decisions. The appeals court promptly took note of a decision it rendered six days earlier through another panel which held that revenue in the Judicial Expense Fund garnered from Criminal Court Judges collecting fines and fees violated the Due Process Clause of the Fourteenth Amendment.
In the Caliste case, after pointing out that Orleans Parish Criminal Court Judges do not “receive a penny, either directly or indirectly, from [their] bail decision,” the Fifth Circuit went on to observe that:
“ … Most significantly, money from commercial surety bond fees helps pay the judge’s staff. Without support staff, a judge must spend more time performing administrative tasks. Time is money. And some important tasks cannot be done without staff. Judge Cantrell cannot simultaneously preside as judge and court reporter (he employs two). Office supplies also promote efficiency. The fees the Orleans Parish Criminal District Court receives from commercial sureties thus help fund critical pieces of a well-functioning chambers. And if an elected judge is unable to perform the duties of the job, the job may be at risk. So we do not think it makes much difference that the benefits Judge Cantrell and his colleagues receive from bail bonds are not monetary.”
As in the “fines and fees” case, the appeals court found that due process is also violated through the practice of the Judicial Expense Fund receiving money derived from bail decisions. The court concluded that “it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the link between the money the criminal court generates and the Judicial Expense Fund that supports it operations.”